A judge's ruling is a reminder to publishers that they must stay in the confines of licences with freelancers if they wish to avoid being taken to court, legal experts told FreelanceUK yesterday.
Reflecting on the victory of freelance photographer Alan Grisbrook, the experts said it reinforced that a licence for using another’s work in one way was permission to use their work only in that way.
In the case before the High Court, Mr Grisbrook, who supplied the Mirror Group of Newspapers with celebrity photos for 16 years, licensed his photographs for two specific purposes.
Although there was no written licence in place, an oral agreement implied his photos were for the production of current newspapers and for the occasional use of material stored in the paper’s archive.
This two-tier agreement, the freelancer said, was intended not to prevent MGN from being able to archive full copies of newspapers, offline or online, at the time or after he stopped supplying MGN in 1997.
But in a claim against MGN which the High Court has now upheld, he objected to his photos being used in digital archives built by the paper, which were designed to attract a fee from users.
Despite having freelanced for the group since 1974, Grisbrook was not asked for, and therefore did not give, any consent for his material to be included in MGN’s database, which he said was a new, commercial use of his work.
By making his material available on arcitext.com and mirrorarchive.co.uk, where researchers paid a fee to see images as they were actually published at the time, MGN infringed his copyright, the court heard.
Upon receipt of Grisbrook’s challenge, the publishing group removed some front pages containing his material, but argued that they had every right to reproduce its own pages, including those featuring his photos.
On this defence, Lord Justice Pattern was sympathetic to MGN.
He ruled: “No photographer could have intended to retain a veto on the newspaper's ability to store back editions in a safe and effective way and this licence would, in my judgment, have extended to any forms of new technology available from time to time for that purpose.
As a result, the “only real issue as I see it is whether the licence also extended to making the back numbers database more widely available to members of the public.”
Finding in favour of the freelancer, the judge concluded: "[The] exploitation through the back numbers websites seems to me to be a different kind of operation which was not contemplated at the time when the licence was granted and cannot be said to have been necessary to regulate the rights of the parties at that time.
“For these reasons, I take the view that Mr Grisbrook's copyright in his photographs has been or would be infringed by the operation of the back number websites.”
Asked about the implications of the ruling, contract experts at Egos said that, in principle, freelancers whose material has been used by a client in a pay-to-view archive now have fresh grounds to challenge, assuming such use was not granted.
In other words, any challenge will only stand a chance of succeeding if the licence for a client to use a freelancer’s work makes no allowance for the freelancer’s material to be used in that way.
Roger Sinclair, a legal consultant at Egos, added that the courts would examine each dispute on its own individual circumstances, which in Mr Grisbrook’s case included a massive underpayment.
He said: “There certainly seems to have been a lot of history and bad blood here - which is hardly surprising if MGN short paid him by £161,000 over a 15-year period, as they seem to have admitted doing.”
Freelancers, Mr Sinclair urged, “would be wise to be clear as to the extent of the licence that is in fact granted” for their work to be used by a commercial entity, so both parties can avoid a copyright dispute.