Can photographers win substantial compensation in a US court from a British copyright pirate? We may be about to find out, courtesy of the Daily Mail.
Florida based celebrity photo agency Mavrix have filed suit against the British newspaper for multiple copyright infringements, and are seeking statutory damages of $150,000 per infringement. With up to 10 images involved the total sought comes to $1.5m plus attorney’s fees and “any such other and further relief as the Court may deem just and appropriate”.
In court documents Mavrix accuse the Mail of “a pattern and practice of intellectual property piracy”:
“One of the Daily Mail employees who Mavrix interacted in the past regarding Mavrix images was Elliot Wagland, the Daily Mail Online Picture Editor. Defendants with Mr. Wagland’s assistance have a history of copyright piracy conduct. Indeed, the pattern and practice of Defendants is to ignore the demand of photo agencies or photographers to agree to rates before use and to simply take the pictures and use them without compensation or to then offer token compensation.”
Those are harsh words, but hard to contest: even a casual glance at recent editions of the Mail reads like a brief history of plagiarism.
- In April photographer Clive Flint discovered that an image from his flickr account had been lifted by the Mail and used in a pre-election piece attacking Liberal Democrat leader Nick Clegg.
- In May Emily James’ polling station images were swiped from TwitPic for a Mail “election night shambles” story. James billed the paper: Wagland tried to bluff his way out using the public domain defence, but later backed down.
- June was World Cup time, and the Mail were caught at it again, this time with the England WAGs.
- August provided a fine display of irony failure when the Mail ran a story on, of all things, copyright infringement and Russian spy Anna Chapman. The newspaper illustrated the story by lifting the very pictures that were at the heart of the dispute.
- In September the Mail ran a lavishly illustrated story on Conservative MP Mike Weatherley with images lifted from his flickr account, where they were all scrupulously labelled “© Mike Weatherley. All Rights Reserved”. The Mail also managed to introduce a novel legal concept by publishing them “©Flickr/The Internet”.
- In November it was Newcastle photographer Keith Pattison’s turn, when he caught the Mail using his 1984 picture of the miners’ strike to illustrate a story on public sector pay cuts in 2010.
- In December the Mail refined their novel net credit: an image of two year old Rhiya Malin was bylined “© The Internet”.
So frequent have been the allegations of copyright infringement at the Mail in recent months that earlier this year a company spokesman was forced to state in the British Journal of Photography that it was not the newspaper’s policy “to breach photographers’ copyrights,” and that it would be “happy to look into individual cases.” The BJP noted however that the spokesman declined to comment further when asked to explain why the photographers hadn’t been contacted, in the first instance, for use of their images.
And the examples listed above are just those that are easily uncovered: it’s not unreasonable to assume that there are more, especially given the Mavrix allegation of “a pattern of conduct that is apparently part of Defendants’ modus operandi with other photographic agencies”.
Alamy photographers in particular have pointed to a pattern of the Mail downloading images and neglecting to complete Alamy’s self-billing system, only paying when pursued by the agency or the photographer. When one Alamy contributor recently contacted the Mail over unpaid uses the picture desk had an excuse ready:
” We use as many as 500 pictures a day and I can’t possibility notify all the photographers whose photographs we use as I would always be on the phone.”
The most significant thing about the Mavrix case may not be the allegation that the Mail is a serial infringer, or the sums of money involved, but the jurisdiction. While the photo agency is American the Mail is of course robustly British, and the traditional view of such cases is that they go to court in the country where the infringement occurred. In the Mail’s case that would be the UK, where the courts would be unlikely to award the kind of sums that Mavrix is claiming.
But in the 21st century, when most major publishers are global enterprises, and their publications are available worldwide on the Internet, such a territorial distinction seems absurd. If a copyright holder wants to pursue an infringer it makes sense to do so in the territory where the reward is greatest, which is not necessarily where the infringer is nominally domiciled. It’s exactly this legal approach that has led to London becoming the libel capital of the world.
That is clearly a key part of the Mavrix strategy: of the suit’s 33 clauses 11 are dedicated to establishing that the Mail is not in effect a British entity, but international, and with clearly identifiable business interests in the US. Essentially the Mavrix argument is not that the case should be heard in the US because they, the plaintiff, are a US company, but because the supposedly foreign defendant has identifiable US connections.
If Mavrix succeed the result may have considerable implications, for not only US individuals can register their work at the US Copyright Office: anyone can do so. In the past that was difficult and expensive for those not resident in the United States, since the office only accepted hard copy submissions. But since the office began to accept online submissions the process has become cheaper and simpler: by regularly batch registering images online photographers can register all their work for as little as $175 a year.
Given the potential damages available under US copyright law that $175 starts to look like very cheap insurance indeed: there are after all plenty of US intellectual property lawyers prepared to work on a “no-win no-fee” basis so long as the material in question is registered. So if the Mail take a tumble in the California court it could be good news for US intellectual property lawyers and photographers everywhere: very bad news for corporate copyright infringers no matter where they are from.