Copyright infringement by the New Zealand Herald

15 January 2015

I have had a bit of a lesson on copyright, moral rights and the right artists have to be identified as the creator of an art work.

NZ Herald bad journalism

In November 2014, magazines published by the New Zealand Herald used an image of my work, Hydra, which was all really exciting, except that it was the one image of art work in the article not credited. One instance of publishing one’s work uncredited might be unfortunate perhaps, but sometimes, people make errors. But for it to happen again, even after being informed of the error and advised of correct credit details, it is just not acceptable.

Details:

Weekend Herald, November 8th, 2014 Feature Story: Urbanesia Calling, page D6, D7, image of ‘Hydra’ appearing on D7.

Viva, Wednesday November 19th 2014 Right Now: Creative Spirit, page 4.

One starts to question whether they really can be bothered crediting artists, and of course, just how good a job a journalist is doing when they fail to credit images at all. How much does the NZ Herald care about meeting their obligations? It is probably considered New Zealand’s major news paper.

The first time it happened, I contacted the NZ Herald via their facebook page (after a lack of response via online contact/feedback forms). I had a response back saying that the online article was now correct (but no mention of the print edition) and that the writer was sorry. You can read the article here, it’s talking about Southside Art Festival, and Cult Couture. So that seemed ok, still stink though! It’s not like they had decided to republish the image in print with correct details.

The next thing that happens is my mum calling and saying ‘Hey that photo is in the Herald again, but it doesn’t say it was by you!’ What?! Again, really disappointing. My contact to the NZ Herald was again, less fruitful, the response was basically, ‘We were not supplied with, or told it needed to be credited, talk to the PR company, and Cult Couture’. Not really taking responsibility for the job of correctly attributing images or art works. Though said they would ‘Look into my feedback’ – I recommended that they credit artists when they use images of their work – shouldn’t they be doing that anyway??

Disappointing too, as other images in both publications had been credited. And is it really so difficult to obtain correct details? I managed to obtain the correct credit for the same image before I published it on my blog. I did have to email specifically, stating that I needed this information before I would use it. But I did get it. And I don’t call myself a journalist.

More phone calls to the PR company and a contact at Cult Couture. What happened is, the PR company was provided with images for use to promote Cult Couture and the Southside Art Festival, some images were credited, some were not. These images were passed onto the NZ Herald, as is.

Copyright Council of New Zealand has this to say:

“Under the Copyright Act 1994, creators have certain moral rights in relation to works  or films they have created.  Moral rights are often referred to as “personal rights” and  are separate from copyright rights − which are often referred to as “economic rights”.

Moral rights remain with the creator, even when copyright is owned by someone else.

Moral rights give creators:

• the right to be identified as the author of the work, or director in the case of a film  (right of attribution);

“Who has moral rights?

Moral rights belong to authors of:   artistic works, including paintings, drawings, diagrams, maps, engravings,  etchings, photographs, sculptures and architectural works.”

Further:

“Right to be identified (Right of attribution)    Creators have the right to be identified (credited) in a clear and reasonably prominent  way, when their work is used in certain situations.”

More from the Copyright Council of New Zealand:

“Authorising an infringement

A person who “authorises” someone else to infringe copyright will also infringe  copyright.  Courts have said that to authorise means to “sanction, approve or  countenance” the infringing conduct.  A person may authorise infringement by telling  someone else to do something that amounts to infringement, or by permitting the use  of equipment (such as a photocopier or CD burner) to infringe. ”

So from this, I gather that Cult Couture and their PR company have ‘authorised’ this infringement.

What to do?

Clearly, my moral rights have been infringed. So what does one do? Well, I got some legal advice, which confirmed that the New Zealand Herald has the obligation to uphold the moral rights of artists, and that they can be held accountable for infringement.

The Copyright Council of New Zealand explains that one can write a ‘letter of demand’ detailing the infringement, asking that it stops, in this case, I’m within my rights to ask that they re-print the image – correctly attributed. I have written to the editors of both the Weekend Herald and Viva magazine, noting that their publications have infringed my right to be clearly identified as the artist who’s work is featured, and requesting that they reprint the image. Was there any response? Not from the editors. I am surprised? Not really, still frustrating and disappointing.  I did receive an email from the Picture Editor, apologising for the error and noting that the picture now has the correct credit attached to it, this would prevent any future uncredited publication of the image. Good, but doesn’t really put right what has already happened. For the moment I am looking into my options for further action.

Has this happened to you? Do you have any ideas or suggestions?

Love to hear from you!

Here’s the lovely image we’re talking about:

HydraAngelaCarterCultCouture2013

Hydra, 2013, by Angela Carter, worn by Sharne from Red Eleven, photographed by Paul Ross Jones.

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