Commercial or Journalistic? You Tell Me

In the final episode of the Toronto Life Creative Commons drama, we have identified the issue to be a difference of opinion about what constitutes “Commercial Use”.

After I sent in my letter to Toronto Life, I got a quick, respectful and reasoned response from Matthew Fox, Editor of TorontoLife.com.

We have resolved the usage issue by TorontoLife.com including a link to CheapEatsToronto.com where they use any of my images (and they have already implemented this.)

Matthew's reply to my letter stated that TorontoLife.com believes the use of the images was journalistic and not directly commercial, and thus did not cause a conflict with the Creative Commons license.  But I’ll let you read it yourself, since with Matthew’s permission, I’m including his response to my letter in entirety and a bit of our back-and-forth around this issue:  [Click to keep reading]

Thank you for your e-mail, bringing this to my attention. I apologize for any trouble this has caused you over the past several days (I see the post on your blog predates your email).

As an editor with a very small budget, I appreciate the importance of these issues. Certainly, I believe the manner TorontoLife.com proceeded was on the up and up. It is not using the images directly in order to generate profit for Toronto Life (they do not appear in advertising, for example, or in works that can be sold); their use is journalistic, in my opinion, not commercial. I do understand, however, if you do not share

this view and, as they are your photos and my budget could never afford 100$ per image, I will be happy to take them down.

I should add that many of photographers we do use here at TorontoLife.com were found on Flickr and that a good deal of traffic is generated for their work through Daily Dish and other parts of our site. While I sadly cannot pay for the images due to budget constraints (trust me, if I could pay every talented photographer in Toronto, I would!), I can offer to link to cheapeatstoronto.com  whenever I use one of your photos. If this is not satisfactory, however, I will simply take the photos down.

My response around the assessment of “Commercial Use”:

So you are right in your assessment that we see "Commercial" differently in this case. Sites which are brand extensions of a print publication are  marketing tools for the print publication which means that all content on the site is directly or indirectly marketing material. Additionally, in the case of TorontoLife.com, the site also has paid advertising and anything used or published on the site supports and drives advertising revenue, thus it's use is commercial. I see the use of any photos or creative in this  context to be equivalent to the use in your print publication.

Final words from Matthew:

I do realize that our takes are different on this issue, but they are not  incredibly different. I by no means want to suggest that TorontoLife.com is not a commercial enterprise. It certainly is. My point was that your work was not used directly for profit (as in, it was not used in an ad or
something of that nature). As an editor, I spend a good deal of time
protecting editorial material from commercial interference.

If nothing else, I hope it is clear that I would never consciously violate a
photographer's copyright license and that I am happy to discuss usage with photographers and writers - in fact, I encourage it. TorontoLife.com is a
brand extension, but the Web is a different medium from print. It is uncharted territory; it is flexible; it allows for rolling changes and updates, and for worthwhile discussions like this one.

Just to be clear, I never thought that Toronto Life or any of their staff were consciously violating my copyright, but I did assume there was a major oversight in how they were using Flickr.  It’s easy to overlook the Creative Commons rules if you aren't paying attention. However, Matthew has made it clear they are paying attention and he has certainly made me think more about the journalist’s perspective on editorial content.

This discussion hasn’t changed my opinion on this being “Commercial Use”, nor do I think I’ve changed Matthew’s opinion. However, it does underscore the differing perspectives of an entrepreneur and a journalist, and raises the question:

where do you draw that fine and wiggly line between commercial and journalistic use, or do you?

Comments

[lance]

Pretty easy in my view. If the copied work is the subject of review then it's fair. If not, it's not.

(That is, if they critiqued my photo of a dinner, not if they critiqued the dinner in my photo.)

IIRC that's how most copyright exemptions work.

[Webmonkey]

Toronto Life made $11 million last year. The web may not make much, but the journalist use argument is silly, and you rightly argued it is a marketing tool as well as a (small) money maker. Mr. Fox makes money editing the site, no doubt.

Try publishing Mr. Fox's book on your site, as an interesting exercise in journalism. See if he feels the same.

[Kevin Richard]

My view of this situation:These written articles are used to not only attract an audience but to attract advertisers which are the means for the organization(which in itself is a commercial organization) to make money.

Had the writer of the article used the picture in a blog post for himself I would consider that non-commercial, but as he is getting paid for the article and the newspaper is paid to distribute this article I agree with you that it was commercially used.

[Blaise Alleyne]

The fair dealing approach (arguing the use is journalistic) does seem weak, as it doesn't seem that the photos are really used for criticism, review or news reporting (see http://www.cb-cda.gc.ca/info/act-e.html#29.1)... I tend to agree with lance.

Though, I'm not aware of the case law in Canada. It'd be interesting to see what the courts have said in the past, about what qualifies as fair dealing for journalistic purposes.

[Paul O]

Was any accompanying text written on a commercial basis? Was the website updated on a commercial basis? I'd have a hard time believing any significant part of TL is not done on a for-pay basis.

That they honestly believe that accompanying pictures should not be rewarded on the same basis, respecting the rights held by the photographer, seems strange.

Seems to me they could try to claim an "editorial" usage (there was some discussion in the past over a collection of R.H.F. jokes which was published). But that would still require attribution, and at least some effort to determine that the copyright holder was not withholding publishing rights.

[Anne Lewis]

i think it's ridiculous to say that the content on a business website is not commercial, and i find it editorially/ journalistically/ morally unsound that they didn't even CREDIT you with the pictures!!!!

when did it become okay to go around and re-publish (in any medium) people's photos without credit - creative commons or not?!?
dammit, i think toronto life owes you $200 just for the hassle. :) xo

[lex]

In fairness, they did CREDIT me which is how I found that they were using the images. Google Alerts are my friends.

I was just pissed that they used my images to promote their commercial site, when the photos were taken to promote mine.