Creative Commons, Copyright and Creators
Image ownership and enforcement in motor racing media - is it worth fighting against, or is it a driver?
You love motor racing. You decide to share your opinions or knowledge of the sport with other fans online, via YouTube or a blog, then one day, you browse through your emails, and there is one wonderfully crafted message inviting you to go and live on the streets as a homeless person.
This is not in any way an over-the-top joke.
This has happened.
And when I say it’s happened, I mean a few times. To my knowledge that’s seven or eight times in the last five years alone based on one thing. Photographs.
It is likely to have happened a few times more, and in addition to that, there are those who have been chased for using video clips too. Pinged by FOM or Dorna. It’s a big bucks deal.
There are others who haven’t had the call yet, they’re fine because they add the usual spiel, the ‘Copyright Disclaimer: Under Section 107 of the Copyright Act 1976’ thing. It’s a magic set of words that saves your arse isn’t it.
Isn’t it?
In the years since the internet took root as a communication construct for the masses, there has been a bit of a battle in motor racing media. Two battles in fact. One is a faceoff between restricted professionals and unrestricted fans in the blog/vlogsphere when it comes to working within the remit of limitations of media content usage. The other relates to direct access to those within the sport.
In the latter the ‘professionals’ win, in the former, even if the ‘amateurs’ lose, the pros do too. Always. The media content loss is decided upon by rights holders and content owners. Or rather, their strength and ability to enforce ownership, if it is to their advantage. As we’ll see further into this piece, not every championship that has the resources to pull content created by others actually do.
So what are the advantages, disadvantages and risks?
Creative Commons licensing is a wonderful thing for the likes of me. Back in 2016 a mate and myself launched Retro Racer. It was more of a motor racing history journal than a magazine. Retro Racer was a place where you didn’t get 3,000 words looking at that record breaking fast lap in qualifying that bagged Keke Rosberg pole for the 1985 British Grand Prix. Instead, you got 45,000 words covering the season, another 4,000 on the ‘original’ 1985 Haas team and another 4,000 looking at the two German drivers we lost that year. It was only possible thanks to the fact that a few amateur photographers had put a decent amount of photos from the 1985 season online with copyright restrictions almost completely removed.
This cover features an image shot at Brands Hatch by Jerry Lewis-Evans.
That’s the first issue of Retro Racer Magazine right there. That cover image cost nothing to use because it was posted online under a Creative Commons 2.0 agreement. https://creativecommons.org/licenses/by-sa/2.0/
If you can’t be arsed with reading the legal, it essentially states that this image is available to use free of charge, and if you yourself make money from it, you have no obligation to pass that on to the creator, but there is a caveat. You must attribute the person who created it, which means if it is used online you have agreed to credit the image owner, and provide a link to the work – in this case a direct link to the flickr page hosting the photograph.
Creative Commons isn’t a carte blanche to nick photos within the license structure and use them how you want though. There are differing versions of the license. Some prohibit commercial use, or any kind of non-commercial use that would still earn you money. Some are simply the attribution-based system. Some allow modifications to the original image, others don’t. When you find a Creative Commons licenced image step one is to find what kind of freedoms it offers.
Most of the time in motor racing the Creative Commons license has been agreed by the owner to allow a photo to be used for illustrative purposes on Wikipedia. If you click on a Wikipedia page for say Lewis Hamilton, each image is a CC picture. Click on that and you’ll be taken to a Wikimedia Commons page that explains the license details of the image and usually the source. Follow those rules and you’re fine, but if you decide to clip images that you don’t have the rights to, you might need to get some legal support and ask a mate to let you sleep on their sofa, because some big guns might have you in their crosshairs.
Sometimes they just leave you alone for a year or 18 months while you rack up copyright infringements. After all, if you have 10 YouTube vids using 70 photos and 10,000 views each, they’re waiting to see channels increase in popularity, because once you’re making any money from the intellectual property of their client, then they’ll make it worth their while to strike. It’s a simple tactic. After all, if the police know a heroin dealer has £1million of skag hidden somewhere, you’re not going to pull him for cannabis possession.
A colleague of mine used to work for a major provider of motor racing photographs – Motorsport Images (formerly LAT – if you’re a racing fan you’ll have seen both names on a regular basis.) The company holds the rights to over 25 million racing snaps. Recently the collection was sold to Getty by its former owner Motorsport Network – the owners of Autosport, GP Racing, motorsport.com, Autosport Awards, Autosport International (which we’ll get to in a moment) and more. He told me about Motorsport Images using a company called Image Rights International to scour the internet to catch out those who were using their images online, either through websites or through YouTube. This is where that ‘lose your house’ thing comes from.
‘It’s just a photo.’ As pro-photographer I’ve had that one, and it is bullshit when that’s the excuse used for lifting without even asking, but what strength do I really have to ascertain control over my images? I certainly don’t have the backup to match a company like Image Rights International.
The company was hired by Motorsport Images to call in the cash when there was a number of online creators using their images. Two very public cases were with the Pitpass website, and YouTuber Aiden Millward. One was a poorly researched attempt at a cash grab. The other followed all the protocols and thankfully common sense prevailed. A warning by Millward to others in the same situation hasn’t really been heeded. In fact, it has kind of been encouraged by rights holders not chasing things they did in the past.
For Millward, he released a video to his YouTube channel (below) explaining how he was nabbed, how there was a lot of stress, and financial woes were avoided when the company considered his case. He doesn’t mention Image Rights International himself, as per his agreement, but the information is out there that it was this company. The initial bill was quite a big one for an individual to be hit with. I have seen, thanks to that former employee a five figure invoice served for illegal use – and it was closer to £100,000 than £10,000. Millward wasn’t taken to the cleaners after negotiations.
In the case of Pitpass (links to three stories relating to their problems are in the links at the end of this piece) the website was incorrectly accused of stealing images. A mixture of paid for and ‘editorial’ images were selected by Image Rights who billed the outlet for over three and-a-half grand. Some of the images were from a contracted supply from Sutton (the motor racing photography agency was bought by Motorsport Images at a later date -along with its archive) which Pitpass had paid for, and the others, well they were from a variety of sites. And they were legal.
For those who don’t know what ‘Editorial’ access means, it is a mechanism where an entity – in this case F1 teams, tyre suppliers, F1 sponsors, the FIA and other stakeholders – pay for photographs that they can distribute via press releases, or host on a page for media only to access. With free access for those outlets. Those photos can then be used on websites or in print without recourse, as the usage rights have been paid for. If you pick up a copy of a magazine like Racecar Engineering you will see those editorial credits – Red Bull Content Pool, Pirelli, Ferrari etc. These are in effect free to the magazine. Thankfully Pitpass was backed up by some of the F1 teams that were utilising their own contracts with agencies, but we still see some online outlets utilising photos incorrectly.
Social media is a ‘Wild West’ situation. Flick through your Twitter or Facebook feeds and whenever you see someone posting a snap of your favourite racing car then quite often it is breaking copyright law. If you download one of my photos from a race meeting and post it on social media then legally I have the right to contact the social media company to request a takedown, and use reasonable legal enforcement to remove the photo, and if the situation requires it, take legal action against you in the same way as if you took one of my photos and used it in a YouTube video or on a website.
When it comes to the BTCC around 98% of the images used by Touring Car Magazine are produced by our photography team. It gives us the freedom to use them how we want for editorial content. Because of the fact that we have a BTCC media account we can use their images for stories on our website. It’s the same with images provided by team/driver/agency/manufacturer press releases, but we can’t use them on social media. With BTCC specific images it means if we take a photograph legally from the BTCC media portal we can’t include it in a YouTube video, or post directly to Instagram, Facebook, Twitter, Linkedin etc.
The agreement states:
Imagery is for editorial use only. It is not for commercial use, re-sale or use on social media outside of team channels.
Some imagery is also subject to copyright and prior permission to use them must be sought (labelled ©).
Please note that proof of £5 million Public Liability Insurance is a standard requirement for all BTCC photographers.
Thankfully we have a decent catalogue of images from our own trackside access to use for socials and YouTube alongside print and web coverage.
We live in a two-tiered society it seems. And I’m not on about how many people refer to current policing or the PM. We can’t compete. As a journalist and photographer who dabbles in a bit of vlogging I turn up on a BTCC weekend with my phone to use as a Dictaphone for ad-hoc interviews, higher end gear for pre-arranged in-depth interviews and my camera gear for photography. I take photos trackside and in and around the paddock. I record my vlogs sticking to the rules – which is to not show any video footage from the pitlane, the pre-race grid, or the holiest of all – track action itself (which is transforming into a strange area as we’re now in a position where cameras can shoot at speeds higher than video records, so theoretically you can imitate moving pictures with it being photographs – but that’s a tale for another day.)
At first glance, if you’re in the know you may think that by two tiers I’m referring to the fact that there are some exceptions. The BTCC themselves, along with broadcast rights holder ITV, can record action in those areas. Teams/drivers can have videographers recording their action in FP1 and FP2 (I’ve had enquiries about performing this role myself) and that is how it is, I have no complaints. The two-tiers I’m referring to is accredited media versus the public, and there are two types of public created content we have to compete with.
Trackside footage and vlogs. It would be a bad move for a racing series to start enacting takedowns on fan vlogs and those who like to post videos of on-track action from their events. It is part of the fan experience now, and it’s free promotion. Search the term ‘F1 Fan Vlog’ on YouTube and you’ll come across many videos that include on track action.
Many moons ago I asked for permission to cover TCR UK in that fashion and they have been fantastic – they are not however beholden to an ITV like TV contract, and I imagine restrictions will be in place for their British GT support rounds next season. This means that vlogs I shove together from TCR and BTCC events are vey different.
It’s time consuming, and financially draining, to find every bit of footage on YouTube or social media, claim against it, then only hope that the hosting platform takes action. It’s self-defeating, but the other side is the story telling. The Aiden Millward case mentioned earlier is the template, and as we’ve seen Millward was burned, but was also lucky.
As an example, a YouTube channel – JW Talks Motorsport (there are others of that ilk) – released a video earlier this year ‘investigating’ the reasons for the drop in the size of the BTCC grid. Millward also covered the topic, and I, via the Touring Car Magazine channel also put together a video on the subject. There are three key differences to all three videos. Millward uses CC images and images used with permission to illustrate his points. For the Touring Car magazine opining over the NGTC/TCR question we have our own imagery – moving and stills – taken from accredited trackside access, whereas the JW Motorsport video, considering the channel is what is termed as being a ‘faceless’ channel, is entirely constructed of photographs and footage that is harvested. Uncredited photographs abound, alongside video. The video is an interesting point, as with many faceless channels it credits the YouTube source where footage was taken from, rather than the rights holder. For example, a section from the 2000 BTCC season cites ‘Hamilton F1’ rather than BTCC or Duke Video.
Of course, in the description the usual ‘Copyright Disclaimer: Under Section 107 of the Copyright Act 1976, allowance is made for "fair use" for purposes such as’ blah, blah, blah, etc, etc. Which as most of us know is not a defence - in this case not at all were TOCA to take legal action. An obviously British YouTube channel versus a British Championship with a major British TV company broadcasting its fare. Section 107 being an American legal mechanism has no jurisdiction with ‘fair use.’ It would be through the British system under fair dealing. YouTube themselves wash their hands of any responsibility as hosts of content, and do not moderate without specific legal challenges in these kinds of situations – part of your agreement when you launch a YouTube channel is to post content that you have created, own the rights to, or have licensed/permission to use.
There is a question though. Do these videos harm or help? I certainly would like to see some academic research to show if, in the sports arena, allowing creators to use broadcast footage is having a knock-on effect that is positive. For example, it is well known in the creator community that NASCAR have an unwritten rule that they will not chase people on YouTube creating a similar kind of content. To put it simply, if you throw up a recent NASCAR race, or large portions of that on YouTube then that’s over the line. However, if you grab footage of let’s say the first 1993 Darlington race to put together a ‘documentary’ about the final race before the passing of Alan Kulwicki, then they see it as a win. – although using photography in there would be a different kettle of fish.
The argument of using footage and photography in a transformative way is semi-subjective. Throwing together 20 minutes of non-licensed material and placing a scripted voice over would not pass the test in court. A 20 minute video with a few bits of footage may pass that grade, but the photography side of things? Not a chance.
Spreading further out, channels with a large subscription base such as Driver 61 or Josh Revell raise a question. Driver 61, as with JW Motorsport, often in the past used a lot of FOM footage while crediting the source where it was taken from, rather than FOM. I’ve only watched the channel for research purposes, but while skipping through a recent interview with Willem Toet I noticed that F1 race footage is now pushed into a small TV graphic – I’m told this supposedly reduces the chance of videos being mechanically flagged by YouTube on behalf of rights holders. As for Revell, he has appeared on the official F1 YouTube channel as a collaborator. Does this mean that FOM are turning a blind eye to creators with a particular level of success, or have a form of ‘off the record’ agreement? What does this acceptance now mean?
If you look at social media growth since Liberty purchased F1 and ignored Bernie Ecclestone on his angle towards socials, the sport has exploded. Thanks (or no thanks depending on your taste) to Drive to Survive, F1 has blown up. The use of their own IP to push current and archive footage to their 11 million YouTube, 31 million Instagram and 10 million Twitter subscribers (plus shares) is leading the world of motor racing media.
This media ecosystem (a descriptor I’ll come back to time and again in these blogs) does have some interesting avenues that ignore the usual limitations. The Red Bull Content pool is a great example of understanding that allowing access is going to expand the reach of the brand. Photos and video with only a couple of restrictions in place means that content creators have quite a bit of material to use. Going back to a publication like Racecar Engineering. Why go through a team media page to find that the 40 images you have access to features nothing related to your article, where Red Bull almost let print publications have free reign? They understand it gets eyeballs on their sponsor more than the next team, which helps when negotiating deals with companies.
Aston Martin have released video footage – for example the Jess Hawkins F1 test at the Hungaroring last year – as complete copyright free – not editorial restricted. I used the footage in a YouTube video, and at the time of release almost every F1 content creator incorporated the video offerings into their vlogs.
It can go the other way too though, with entities using content, but not in line with the restrictions. A recent Twitter post to promote the upcoming Autosport International show (see tweet below) used photographs taken from Wikipedia under Creative Commons, but didn’t credit or attribute the creators.
One of those photographers contacted me about the issue, stating that when a ‘normal person’ uses their photos on social media they couldn’t give a fig. But when a company that is connected to Motorsport Images, with access to thousands of BTCC images uses their content to attract paying customers to an event either something is going very wrong, or we’ve stepped, or even fallen through, the looking glass.
Links
https://www.pitpass.com/66002/A-question-of-image-rights
https://www.pitpass.com/72274/A-question-of-images
https://www.pitpass.com/65878/Could-media-giants-copyright-move-damage-teams-image
Music listened to while writing this article:
King Crimson – In the Wake of Posiedon
Wishbone Ash – Argus
Vio-Lence – Eternal Nightmare
Kreator – Coma of Souls