Photographer Jonathan Kent first contacted BJP on Wednesday 08 February when he found that his image of Mary-Ann Ochota, a Channel 4 broadcaster, had been used by Mail Online without permission. After being alerted of the copyright infringement by its picture desk, a senior figure at the Mail swiftly moved to compensate Kent.
However, hours later Kent found that the same image had also been used by The Daily Telegraph on its website - again without authorisation or compensation.
After the photographer requested to be paid for the unauthorised use, Matthew Fearn, a deputy picture editor at the Telegraph has been caught arguing that due to the nature of the industry, picture desks around the country are not always required to seek permission before publishing images.
In an email seen by BJP, Fearn writes that due to the "ever-shifting nature of news - in particular with the advent of online publishing - [...] it is not always possible to secure copyright clearance before pictures are published."
He adds: "Our industry therefore adopts the stance that if a picture has no overwhelming artistic value and if there is no issue of exclusivity (ie it is already being published online or elsewhere) then no reasonable copyright owner will object to its being republished in exchange for a reasonable licence fee. The only alternative to such a stance is not to publish pictures at all unless they come from a commercial library, the available range of which will inevitably be inadequate."
The picture editor then goes on to point out that if Kent were to pursue a legal case against the newspaper, it would result in his blacklisting. "Clearly it is open to the copyright owner to adopt the position that we have "violated" their copyright. The legal position in cases of breach of copyright is generally that the publisher is required to pay double the industry rate to take account of any 'flagrancy' of the breach. Inevitably the outcome is that publishers tend not to use pictures from such copyright owners in future."
Fearn then blames the blunder on the photographer arguing that if his blog had had contact details, the Telegraph would have been more than willing to pay the appropriate fee. "In this instance, and in light of what you have told us, we have no reason to doubt that you are the copyright owner for this picture. However the blog from which it was taken gave no indication as to the copyright owner and no contact details. We therefore used it (in fact we inadvertently used it again for some four hours this morning) in the normal way, which is to say that we were always prepared to pay the industry standard rate."
Fearn has proposed to settle the case via a payment of £400, while denying flagrancy, adding that Kent had better accept the offer as he would not get a better deal in court.
Speaking to BJP, the photographer says he will be requesting that the Telegraph makes a more sustantial donation to his local school, arguing that £400 was just not enough considering that his copyright had been infringed upon.
The case comes a year after a picture editor with the Daily Mail argued that images posted online were, effectively, in the public domain.
UPDATE: A Telegraph spokeswoman has issued the following statement to BJP: "The Telegraph addressed swiftly and openly the legitimate concerns of a professional photographer. We told him that that industry rate for online usage of a picture such as this is £25. Having been unable to secure clearance in advance (as we do in 99% of cases) we were always prepared to pay substantially more to compensate him for any inconvenience. As soon as he contacted us we explained the circumstances and offered him eight times the industry rate. In seeking £1000 from us, Mr Kent made clear that he had copied his email to the BJP and that you would be likely to take an interest in this matter if we did not pay him."
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