The Daily Mail's novel internet copyright concept

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 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.
  • 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.

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.

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3 Responses to “UK Daily Mail Faces Million Dollar US Copyright Suit From Mavrix Photo”

  1. […] Internet lol. David White posted this on December 14th, 2010 It looks like that dastardly Russian snapper has beaten me to it. I was going to do a piece on how the Daily Fail are using “© The […]

  2. […] The Middle England frenzy whipper the Daily Mail has been stealing images again. See here for the full rundown. […]

  3. […] Of The Year Highly Commended: Daily Mail for Hanging On The Telephone. Highly Commended: Judith Griggs and Cooks Source for But Honestly Monica. Winner: iStock for From […]

  4. Bogdan Bogdan says:

    These are the fruits of our “entitlement” culture. Top to bottom no one cares anymore.

  5. […] happened to coincide: in a truly epic irony fail, even the Daily Mail – notorious for their freetard approach to photography – attacked the fair use proposals, describing them as “Google’s latest power […]

  6. […] Ironically, for someone charged with presenting proposals to make digital Britain fit for a wired-up world, Hargreaves has managed to do the opposite with his OW scheme. As it stands the proposal to orphan any image not on the register will turn the UK into an island of state-sponsored copyright theft, and will inevitably invite legal challenges from foreign photographers, most especially those in the US. […]

  7. […] Well, er, yes; which is why a few of the responses to his article were less than kind, accusing him of hypocrisy. However the Doctorow fan boys, like Cory usually very much in favour of redistributing photographers’ work without permission, felt his pain and the comments were largely filled with suggestions that the Doctorows should call M’ Learned Friends. Although it would be highly entertaining to watch the Doctorows sue the Mail for copyright infringement that’s sadly not going to happen; or at the very least they’ll have to get in line. […]

  8. Martin Belam Martin Belam says:

    They’ve been doing it for years too. Back in 2008 I recognised a photo in one of their stories from Flickr – the subject was a notoriously fat local dog – and discovered that the entire article seemed to have been based on typing “fat dog” into Flickr, and then using whatever pictures came up, regardless of their origin or copyright status –

  9. […] been nicking photos again. And the owner of the photos is not happy. Really, they are in fact $1.5 million not happy… Florida based celebrity photo agency Mavrix have filed suit against the British newspaper […]

  10. […] (.pdf) is one of the most pleasant things I’ve read in a long time… Florida based celebrity photo agency Mavrix have filed suit […]

  11. […] been nicking photos again. And the owner of the photos is not happy. Really, they are in fact $1.5 million not happy… Florida based celebrity photo agency Mavrix have filed suit against the British newspaper for […]

  12. Christine K Christine K says:

    My photo was also lifted from my flickr account – I’ve asked them via various locations on their site to remove it and they have yet to do so….the photo of ME has a derogatory comment attached to it:–The-worlds-WORST-yearbook-photos-range-strange-scary-just-plain-hilarious.html “Many of the high schoolers have braces and a fair few sport lazy eyes”

    I lost my eye in 1990 and now have a FAKE eye. How do you think I feel that the Daily mail is making fun of my disability?

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