UK Independent editor claims it may steal any image posted to Flickr

The Independent used a photograph by Peter Zabulis without asking his permission. The photo in question is marked "All Rights Reserved," meaning that the photographer didn't offer any license to use it--a wee fact that The Indy missed. Normally when this sort of thing happens, emails are sent, accommodations are made and the situation is resolved. (In this case, the teaching moment is that the Flickr API feeds you content, but not a license to use it). But when Zabulis contacted The Indy--a major newspaper in the UK--the respondent instead claimed that by posting the picture to Flickr, he had abandoned his rights, even if Flickr's terms of service (not to mention the law) say otherwise.
We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there. I do no consider, therefore, that any copyright has been breached or any payment due.
Freely sharing one's work is a popular choice, but it's not the choice that Zabulis made here. Moreover, the Independent didn't attribute the work, responded disrespectfully to his inquiry, and offers no fair use defense or even a transgressive rationale for what it did: just "tough shit, old boy," safe in the knowledge that legal recourse is an option only to those who can afford it. Pete's flickr set [via Valleywag]


  1. Oh, well then! I’m sure this works both ways, and that The Independent won’t mind my using their articles, verbatim, without attribution. They abandon all rights by posting them online, of course!

  2. I notice the Independent is showing ads on their page too, so they are profiting from their breach of his rights.

  3. Hmm, I wonder how much potential revenue he lost because now he can’t sell the photo under an exclusive license if he so chose.

  4. Seems like Flickr has a legitimate interest in this case: if this goes unchecked, it’ll have a chilling effect on other photographers uploading their works. Yahoo I’m sure has deeper pockets and more legal experience than this one guy. If they don’t go after the Indy, it’s a bad sign.

  5. Yahoo! should handle this. As in ‘drive the point through court and to exemplary extent worthy of mention as precedent’.

  6. Why get lawyers involved? Just solve this the old fashioned way – by swapping out the image with your choice of a “stop stealing from me” image, or goatse.

    1. Why not? Because the Independent didn´t link it, they made their own copy and used that. So there is no technical way for Zabulis to alter or remove it.

  7. Also note that Flickr itself encourages and facilitates this type of functionality in their “Flickr badge”:

    In a few seconds I was able to generate a badge that included public photos from PeteZab, and Flickr said “All you need to do is copy and paste this chunk of code into your website where you’d like your badge to appear.”

  8. This is actually an interesting issue. Imagine if the photo in question were on a poster board held aloft at a public demonstration. If the paper’s photographer took a photo, could the demonstrator later assert copyright?

    If not, could the paper get around this issue by taking a photo of a computer displaying the Flickr page? What about a screenshot? What about a screenshot cropped exactly around the photo?

    Surely the answer is somewhere between the extremes of the Independent’s position and “you cannot report on Flickr posts”.

  9. Am I the only one who thinks it’s a bit strange to be reading something like this on here of all places?

    I tend to think of Boing Boing as a rabidly free culture type of outfit, where the act of ignoring intellectual property rights is praised in the name of bringing down bad old distribution monopolies.

    Here we have some guy who feels slighted because someone else violated his intellectual property rights…

    I fail to see much of a difference. Doesn’t this make the Independent a gang of copyfighting heroes? The only difference I can see here is that we’re talking about an individual as opposed to an organization getting the short end of the stick.

    But I’m probably wrong on this. Enlighten me.

  10. Like Adam Weiss, I’m surprised to see the tone of this discussion on boingboing. It seems different to the tone when Wikipedia reusing the National Gallery’s photos, and quite different to this, by Cory D.:

    “One of the books I took on holidays with me was Wallace Wang’s “Steal This File Sharing Book,” just published by No Starch Press. It’s a great, thorough, easy-to-read guide to all the different ways to acquire files over the Internet, from sharing by email and IRC to getting the most out of multiprotocol P2P tools to seeking out and using ratio-based leet warez boards.”

    What’s sauce for the goose is sauce for the gander, no?

    Am I missing something too?

  11. @Adam Weiss & tomslee

    I don’t think there’s necessarily anything hypocritical about calling your political opponents on their own hypocrisy. You don’t need to follow their rulebook to notice when they violate it.

    Also, while it’s possible to do both concurrently, copyright violation and plagiarism are two very different things.

  12. I don’t think it’s about boingboing’s double standard – the whole, stick it to the man, copyfighter, take what we want to sustain creativity and culture… I think it’s more about pointing out a double standard on the part of the Independent. Print media knows better than any other industry the importance of paying photographers for their work.

    Can you imagine what the independent’s response would be if someone ripped off one of their online articles? Their crummy excuse runs both ways. Hey, you put it on the internet, therefore you waive all rights to its authorship? Fine, I start republishing their articles on my blog. That’s okay, right? Right?

  13. Actually, having said the above, they could have avoided this mess in the first place by just linking to the set on flickr rather than embedding on the site. Even embedding a slideshow is not (in my mind) the same as taking his photograph and publishing it in the daily without proper remuneration or attribution.

    The photographer in question has a grievance, and the guy he conversed with at the Indy obviously had no clue how to respond in a satisfactory manner. However, I cringed a little when I read his “look at the violence inherent in the system!! oppression, oppression!” and his insistence that the Indy ‘stole’ his work.

    If the Independent want to use any of my flickr stream, be my guest. It’s under CC anyway, but even with that I know that under the copyright law of England and Wales I still retain rights over that work, such as the right to be attributed, so make sure my name is on it.

  14. I don’t think it’s about boingboing’s double standard

    BB is a collective of independent editors. There’s not a BB Constitutional Amendment on copyright to consult.

    And more importantly, nobody here has ever claimed that the issue isn’t complex and nuanced. There’s no simple answer to the question of how to appropriately protect IP while NOT criminalizing everybody else. Stories like this are just more data to plug into the attempt to find a workable solution.

    Appropriate/inappropriate behavior in relationship to IP is best summed up by SCOTUS Justice Potter Stewart: “I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . . “

  15. Weiss and Tomslee also need to pay attention to their own confirmation bias. They either ignore the bulk of Cory’s content or misinterpret it to come to the conclusions that they have.

  16. Hypocrisy would be BB calling for the protection of photographers’ rights on Flickr with technology (which didn’t ultimately work) and draconian laws that allowed Flickr to shut off the internet access of anyone they accused of copying their photographs without having to provide proof of any wrongdoing. What;s happening here, supporting the use of a system of laws to prove and resolve an issue of infringement is pretty much in line with what they’ve pushed as long as I’ve been around here.

  17. The problem as I see it is just as #2 pointed out; the paper is in effect generating ad revenue with the help of Peter Zabulis’ photo. Without attributing him. And bullying him when he complains about it.

    I’m a photographer and I don’t mind if my work appears in a flickr badge on some site, even one that the author is living off of. The badge attributes the photographer depending on the options chosen, but at least links back to the flickr photo page. It’s also quite hard to show just one specific photo with that badge. I’d write off the flickr badging of my photos as a marketing expense of 0€. Mind you that I evaluate my usage fees on a case to case basis, and if it was my photo the paper had used, unlicenced and without attribution, they’d recieve an invoice consisting of a fee for investigating the unlicensed use in addition to the regular usage fee.

    As to #9’s wonderings, the first two examples would probably be considered derivate works or something along that line, the cropped screenshot would obviously not.

  18. Silly peasants, monopolies are for rich people.

    This is interesting; it highlights the problems of differential access to the legal system. The very wealthy have extra rights since the enforcement of rights, in this scenario, is costly to the owner. I think this stems from the costly process of getting through law school. I would love to see lawyers get free law school in exchange for a few years service in free legal clinics or public defenders offices.

  19. What I think is interesting here:

    Using a ‘stream’ from flickr, (I didn’t check the site, so maybe they actually copied it, but it doesn’t make me think this is less intriging)), is broadcasting identical content from the exact location. In fact, it’s the same transaction as moving the photo, as published, from flickr to the viewers computer, in another context. This certainly seems like a violation of copyright as we see it overwhelmingly enforced, but is it actually in violation of the law as written?

  20. Fortunately the Independent is in the UK, so if they lose what seems to be likely to be a brief case, they’ll have to pay all the costs.

  21. This happened to me last year, when The Sun took one of my photos from Flickr, using it without permission or attribution. [Third image here from

    Although it’s marked as Creative Commons NC-By-SA rather than a more obviously understandable © notice, the operative phrases there are clearly “non-commercial” and “attribution”. My emails to them on the subject were met with autoresponses but little else. It’s most galling because I wouldn’t have given permission if they had asked, but they clearly felt they could just take with complete disregard for rights and niceties.

    It’s one rule for the evil multinational media conglomerates etc etc. Harrumph.

  22. I assume that if the Digital Economy Bill goes though this would be the 1st of their 3 strikes towards an Internet disconnection?

  23. Don’t be a victim.

    Get a lawyer specialising in IP law, find out the tariff for publication (it’s normally a flat fee up to x000 issues, plus a sliding scale per 1000 above that) and bill the Independent for a) what is legally your due and b) a penalty for unauthorised use.

    Happened to me with this image.

    Lifted from Flickr and used in a 350k print run (not by the art museum in question, I hasten to add).

    Four digit Euro out of court settlement.

  24. Maybe The Independent were wrong in not filtering for photos with the ‘All Rights Reserved” tag (the default tag BTW), but there’s plenty of blame to go around here. Flickr could make it a part of every method in the API to return the license code. At the moment the programmer has to specifically query for the license. Secondly, as I understand it, The Independent did link to the Flickr site, they didn’t republish the JPEG on their website. That linking was only active for a short time.
    Lastly, it explicitly says on Flickr that disputes should *not* be posted publicly, but should be filed with Yahoo. They have a process and will suspend or close accounts of Flickr accounts that contravene the terms and conditions. That would probably be a more effective way of taking on a large newspaper than an individual threatening legal action.

    The simplest solution would be for Flickr to fix its API so that the license code has to be used.

  25. Ah, but the THREAT of legal recourse is available to anyone who can write a good letter, or who has a friend who is a lawyer. In many cases, that is enough.

  26. This is such an open-and-shut case of unauthorised use of a creator’s work that he should just send them a bill and, if they don’t pay, claim through the UK’s county court small claims mechanism.

    It’s unbelievable that anyone at the Indy with the authority to post pics from Flickr on the Indy’s site doesn’t have a thorough understanding of the copyright issues. Certainly nobody at the publishing company where I work is permitted that combination of power and cluelessness.

  27. Seriously, as @Capissen said in comment #1, I think this editor just told the world it’s okay to use content from the Independent without attribution or payment.

  28. This is why I got off of flickr a few years ago, not to mention the tethering to Yahoo! I was asked to let a Danish catalogue publisher use a photo I had taken, but I declined the offer. They used it anyway. The way things are today, if you post something on the internet, you can expect someone to steal it. This doesn’t really bother me, but I don’t like the idea of someone making money off of my work without my knowledge or consent.

  29. I’ve lost track at this point how many times my photos have blatantly been stolen and I simply do not have the means to hire a lawyer (being unemployed over a year now). Photographers seem to be the most disrespected artists. You can’t get away with using a painting the belongs to someone else but stealing photography is a constant with the introduction of the internet. Although, I’ve had photos stolen years before the birth of the internet. I make a habit of documenting everywhere I find my photos used with and without my permission and posted them to my Flickr photostream:

    I hope to one day afford legal assistance with these matters. Until, them my art and livelihood is severely suffering. Good luck to Peter on this matter.

  30. I don’t see a double standard. Large corporations abuse copyright laws and the intent of those laws in order to make money with outdated business practices (see: DRM and suing your best customers because they rip a CD to listen on their iPod, or Disney famously extending copyright laws to have work protected for an unreasonable length of time).

    Other people rely on copyright to protect their works. For instance, Cory licenses many of his works under a Creative Commons license allowing you to read it for free. But that license doesn’t allow a paper to reprint it, in its entirety, without Cory giving the go ahead.

    There’s a world of difference here.

  31. From the linked flickr comments..

    “mikesolita says:

    Curious to know if you have any success taking the legal route. This is a industry-wide problem that’s just getting worse. I’ve had illustrations and graphics — professional work, not even personal stuff — show up on blogs like Gizmodo, Boing Boing, Fast Company, etc both uncredited and unlicensed. It’d be a full-time job pursuing every copyright infringement and unlicensed usage of commissioned artwork that shows up”

    Industry wide… Boing Boing… uncredited… unlicensed… infringement… goose/gander… open/shut… comment?..

  32. I don’t know about the UK, but launching a lawsuit is harder for Canadians because we don’t have any “contingency” lawyers. Canadians have to pay up front every step of the way to sue anyone. So here, it’s only the big guys suing the little guys.

    But I am surprised that a publication in the land of The Digital Economy Bill would behave in this manner.

    There is a world of difference between commercial and non-commercial use.

    When I don’t have the images I need or time to create them for my blog, I use the Flickr advanced search and only even look at images that I can safely use. Every Flickr image I’ve ever looked at has the license on the “All Sizes” page. If I can learn that, why can’t people getting paid to publish?

    Even Google’s advanced image search gives the option of searching for creative commons licensed material… although almost all are Flickr pix. Wikipedia commons is another great place to go for images.

    For individuals like me, blogging etc. is a learning experience, Mainstream publishers have lawyers. There is a difference.

    But what sounds the worst is the arrogant rude attitude. If I forgot to attribute an image (not impossible with a middle age brain) I would at the very least apologize. It sounds like the response was pure abuse.

    Are they always like that or are they perhaps trying to launch a series on copyright and the internet?

  33. I think the way this article is put together makes it slightly unclear what happened. On first read, it sounded like they had taken his photo from flickr, and specifically attached that to their article. What I now understand is that they embedded a flickr stream, which displayed images from flickr tagged with snow, as a temporary measure while waiting for user generated content to appear.

    I’m quite happy to believe that this is outside the TOS, but I can easily see how the paper thought it was OK – they weren’t hosting and serving images themselves, they were showing images from a stream, from a site that is set up to enable that. As I understand it, it’s entirely possible that they never even saw the image, especially if they were using a live feed.

    They haven’t been over friendly in their emails, but it seems mostly like they don’t get how displaying a publically available feed on their website is wrong – so I think they’re being ignorant, but not particularly abusive.

    Really, though, the best solution would be for flickr to provide streams which were known-good for commercial customers to use as necessary, and make that very clear to corporate clients.

  34. Funny, when it’s about people “file sharing” movies or music, we get all the apologists saying “no one has been deprived of anything, where’s the theft?”. When a commercial organisation does it it’s called “stealing”.

    In both cases, the copyright holder has been illegally deprived of potential revenue and in both cases it is, yes, tantamount to theft. Condemning one and defending the other simply makes you a hypocrite.

    Copyright terms can be ridiculous but that is a different argument. I could argue that being seen to defend your copyright should include common sense measures like “don’t post your material in an easily copyable form in public”.

    In both cases, just because it is easy to copy or download something from your web browser doesn’t make it right.

  35. @epo That argument would stack up only if you ignore the clause about ‘commercial use’. The Indy is clearly using the image for commercial use while the vast majority of file sharers aren’t.

  36. A safe way to license Flickr images is through Getty Images. The Flickr Collection is a selection of the best creative imagery which has been handpicked from Flickr by Getty Images. The collection is available exclusively on for commercial licensing. You can see the collection here

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