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.
**** Update – This issue has now been resolved, payment has been agreed and an applogy received ****