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Scotsman photographers win!

21 May 2005 - EPUK

Photographers who were in dispute with The Scotsman newspapers (The Scotsman Publications Limited – TSPL) are celebrating a comprehensive legal victory over the company in a major copyright infringement case.

Eleven photographers – on whose behalf the NUJ took legal action against TSPL – have together won more than £20,000 in lost fees in a case estimated to have cost TSPL more than £170,000. TSPL has accepted its use of their copyright work was unlawful.

One of the photographers said: “It has taken an awful long time, but it is gratifying to finally have established that we do own the rights to the photographs that we have taken and the we do have the right to specify where they can and cannot be used. “Of course, I would be much happier if TSPL had been responsible in the first place and had settled on a contract that established it was reasonable for photographers to retain rights over their pictures and to be fairly paid when they are reproduced. “The TSPL titles would have a far greater pool of talent to draw upon if they were willing to treat photographers with professional respect. Even now, I would encourage the company to revisit their policies in this area. “For the moment, though, we will be celebrating this victory, which should send a message to all publishers that they cannot ride roughshod over photographers, or any creators’, rights.”

A long story

In early 2001 TSPL notified photographers it wanted to establish a new contract with photographic contributors to its three titles (The Scotsman, The Edinburgh Evening News and Scotland on Sunday). The company initially negotiated with the photographers and then with the NUJ. In essence the paper wanted to take freelance photographers’ copyright so they could use their work time and again, without further payment.

Although initial negotiations seemed productive, in March 2001 TSPL announced its intention to impose the new contracts come what may, and refused further discussion with the NUJ. A core group of photographers – many of whom had taken photographs for TSPL titles for years – decided they would not work under the new contract and forbade TSPL from using any of their archived images. In doing so they had the support of nearly every freelance photographer in Scotland.

For nearly a month, all three TSPL newspapers appeared using publicity material alone as well as unlawfully reproducing images taken by the photographers with whom it was in dispute. Many freelance photographers to this day refuse to allow TSPL titles to use their work, although the group who were in dispute stopped asking colleagues not to supply the papers once it became clear that the company would not return to the negotiating table. At that point the photographers, backed by the NUJ, raised a legal action against TSPL for the unlawful use of their images, both in the papers on its various web sites. Since then the NUJ believes the company has used every legal ruse possible to avoid settling.
Finally, on Monday April 25 2005, the day before the case was to be heard in court, TSPL capitulated and paid the photographers in full for the unlawful uses of their images.

NUJ does good

This is a great example of a Trades Union doing what they do best – being able to underwrite otherwise prohibitively expensive legal actions against employers who want to bully their way into taking away rights from workers. In this case, freelance photographers’ copyright is a statutory right, a property owned by them and given protection under the Copyright, Designs and Patents Act 1988.

The case involved 133 copyright abuses in the print editions of newspapers and magazines, and 52 copyright abuses in the online versions of the newspapers amounting to over £33,000. At its height, nearly 200 photographers supported the dispute by refusing to supply The Scotsman titles.

Although the case never went to court, it can be seen as establishing an important precedent for other photographers who may have had their copyright infringed by Scotsman Publications in the same manner, and who can now make similar claims against the publisher. It is to the photographers’ credit that – against the advice of the NUJ’s lawyers – they refused to settle for everything demanded on condition of confidentiality. Instead they stuck out for another few days until TSPL gave in to their claim without a gagging order preventing the story being told.

Back to work?

So now everyone can go back to supplying The Scotsman and its sister publications under fair terms and conditions as well as retaining their rights over their photographs? Unfortunately not. The dispute started when TSPL tried to force a copyright grabbing contract on freelance photographers. The photographers’ response was to stop supplying pictures, but The Scotsman didn’t remove the contentious copyright- grabbing contract term. Freelance photographers working for The Scotsman, The Edinburgh Evening News or Scotland on Sunday today may be working under a contract which passes title in the copyright to TSPL. Its the end of a long battle for the photographers involved but the war against copyright grabbing and abuse continues. All photographers need to be aware of the rights they own and the value in their copyright. Publishers aren’t trying to take them from photographers just for fun, they know that intellectual property is a valuable asset. That asset rightly belongs to the photographer and shouldn’t be given away or allowed to be stolen.

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