SMH in copyright blunder over tweeted duck pic

The Sydney Morning Herald has apologised after being caught out using an image from social media without permission and claiming it was a reader’s photograph.

Trey Ratcliff, who runs the blog, wrote a blog post accusing the newspaper of breaching the Creative Commons licence on his site by using a photo of Florentijn Hofman’s Sydney Festival installation “Rubber Duck” and presenting the image as having been voluntarily submitted.

Image used with the permission of Trey Ratcliff.

The piece headed “I’m not a reader, Sydney Morning Herald” questioned whether staff at the newspaper understood the nature of a non-commercial Creative commons licence.

Ratcliff wrote the non-commercial licence he provides “is quite generous” and the website clearly explains the licence is only for non-commercial use of images.

“Now, I know newspapers are commercial, even though they are hemorrhaging money as people flock online to get more timely news and better photos… So, the commercial use is definitely a no-no,” wrote Ratcliff.

He also criticised the newspaper for presenting the image as: “a selection of our reader’s photographs of Rubber Duck.”

“I think it’s a bit rude not to give credit down there towards the bottom of the photo. Instead, they used that valuable space to indicate that ‘oh we’re just one big community with ‘our readers’ who take these pics for fun,’” he wrote.

The original photograph. Photo credit: Trey Ratcliff. Image used with the permission of photographer.

The New Zealand resident concludes by writing: “Oh no, I didn’t pay thousands of dollars to fly to your country and stay in a hotel and buy camera equipment so I could take photos of your duck to adorn your newspaper.”

Sean Aylmer, editor-in-chief of the Sydney Morning Herald, told Mumbrella the image had been found on a Twitter feed and that there was confusion over who owned the copyright on the image.

“We asked readers to send in their favourite pics of the duck, via Twitter. We received many,” said Aylmer, in an email to Mumbrella.

“The main image we used was not tweeted to us. We found it on a Twitter feed. We went back to the person who had tweeted the picture. At this stage we believed it was his.”

“On deadline he responded saying it was a retweet. We then Googled to find its origin and found a high resolution copy of the picture on thedailyblender blog (among others). By this point we were past deadline. We emailed thedailyblender immediately. They didn’t respond (not surprisingly because of the time of day). Turns out it wasn’t thedailyblender’s either.”

Aylmer conceded the newspaper failed to establish the copyright of the photo before publishing.

“At the end of the day we didn’t establish ownership of the picture and we should have. We have apologised to Trey Ratcliff,” said Aylmer.

Ratcliff told Mumbrella he has yet to receive the Herald’s apology.

“Perhaps they have placed a handwritten apology in the pouch of a kangaroo and it jumped in the wrong direction, for I have yet to receive it (or any digital facsimile thereof),” said Ratcliff.

The Sydney Morning Herald would not comment on whether they would now pay Ratcliff for the use of the image.

“That’s between him and us and not something we’ll talk about,” said Aylmer.

The incident comes a week after the newspaper itself published a story about the practice of people lifting other people’s photos and images.

Alan Knight, professor of journalism at the University of Technology Sydney, said the practice of media outlets publishing images from the web and social media was increasingly common.

“On the face of it they are being very naughty and somewhat unethical lifting someone else’s material but this is quite common practice on the web,” said Professor Knight.

“Under Creative Commons he should be protected but then again a lot of this depends on legal ability to enforce it. ”

The Herald is not the first newspaper to have used images without permission – two weeks ago London’s Evening Standard was caught out over the use of images in the London helicopter crash and reportedly offered to pay the person whose image it used as they would a picture agency.

Professor Knight said media outlets need to review their processes around publishing material sourced from the web.

“Newspapers need to examine this, especially when they are charging for the content. It has become an open field and they rarely get caught,” he said.

“People are in the habit lifting other people’s material, particularly images. Even though there are many ways, on Google for example, to search for copyright free material.”

Nic Christensen


  1. Daniel
    25 Jan 13
    10:27 am

  2. Another possible example – see the picture of the “An artist’s impression, From the Deep” from:

    That’s not artists impression. It’s someone photo from the Brisbane Festival in 2012 of an installation that was called the City Of Lights. For comparison here is my photo from Brisbane of that installation:

    Note the exact same bridge and buildings in the background. The image is clearly someones photo from the event that has been published un-credited. It is possible Fairfax is innocent in this one and has simply published an image provided to them by the event creator – either way this is -not- an artists impression.

  3. Harry B
    25 Jan 13
    10:37 am

  4. So SMH says they were under a deadline, so they didn’t bother to check copyright properly? Talk about playing fast and loose.

  5. Steve Martin
    25 Jan 13
    10:43 am

  6. Yeah… The acclamed pillars of journalism…the publics right to know, honest reporting, etc., etc. have been flushed down the toilet again by another unethical newspaper. Where do these people get the idea they can represent themselves as a bastion of information for the public good when they themselves are nothing more then curb sucking low life thieves?
    The only thing to do to get their attention is to go after their wallets.
    I sincerely hope that the photographer takes them to court for the maximum amount of settlement he can get. If it forces the newspaper out of business…that would be a public service in getting another criminal off the streets.

  7. Lyana Votey
    25 Jan 13
    11:03 am

  8. Liam Hammersley
    25 Jan 13
    11:14 am

  9. If they were under deadline and couldn’t establish who owned the copyright of the image, they should have just pulled the image from the article, simple as that, if in doubt, don’t do it.

  10. Tim Bennett
    25 Jan 13
    11:26 am

  11. What’s the going rate for having one’s freelance photo published in the paper?

  12. Brett Y
    25 Jan 13
    11:44 am

  13. I think it is only fair to give Mr. Ratcliff credit. He give people a much freedom in using his photos for their own personal reasons.

    Shame on you Sydney Morning Herald. I think a a front page full color apology should be put out for the theft.

  14. Neerav Bhatt
    25 Jan 13
    12:22 pm

  15. This isn’t the first time Fairfax has broken CC rules as I reported at

    Trey Ratcliff should send them a big invoice.

  16. on another note
    25 Jan 13
    12:41 pm

  17. it’s a beautiful photo

  18. Trevor Connell
    25 Jan 13
    1:34 pm

  19. Some interesting points here

    1. The SMH (and other publications) should never use the work of any artist (writers, photographers, cartoonists, etc) without their permission and a by-line.

    2. The SMH state they found the image on thedailyblender – this is a blog that steals the work of others and posts it without attribution and then invites viewers to share them. Not exactly an ethical source.

    3. I’ve been following Trey Ratcliff for some time – his blog and his tutorials, I admire his work and his generosity – he does not deserve to be ripped off like this.

    4. Photographers can embed copyright and contact information in the IPTC fields of the image metadata. This at least alerts honest users of the images to the provenance of the image. Trey for some reason does not include the IPTC info in his files.

  20. Anonymous
    25 Jan 13
    2:06 pm

  21. If in doubt, leave it out.

  22. Jimbo
    25 Jan 13
    2:10 pm

  23. The real question is: what constitutes “commercial use”? In the age of the internet and ad networks, what makes a website a “commercial” site? If I publish the photo on my personal blog, but I have Google Ads on my blog, am I using it for commercial purposes?

    I would have thought “commercial use” means in advertising/marketing materials, ie not editorial usage. Eg, a footballer can’t stop his image being published in the sports pages, but he can stop it from being used in advertisments without his consent.

  24. TellyPrompter
    25 Jan 13
    2:43 pm

  25. Suggest put a watermark on your images so ownership is never in doubt

  26. Oscar
    25 Jan 13
    3:07 pm

  27. I think peps are being a bit tough on the Sydney Morning Herald,.
    The picture editor tried to contact me last year to ask permission to use a pic from my blog for the Sun Herald but I was unavailable.
    They took a chance and used the photo but I was more than happy with the fee I negotiated and let’s face it, many bloggers live in a twilight world of unusual hours that don’t often co-incide with the pressures of a deadline.
    Presumably most snappers who publish their work via the internet are happy for a photo to be re-used for a fee and Fairfax are diligent when it comes to paying.

    A hiccup yes but in this case, it wasn’t a hangable offense and the upside is we all now know about Trey Ratcliff’s great travel blog !

  28. willemrt
    25 Jan 13
    4:17 pm

  29. Under section 42 of the copyright act. This could be given an exemption under the Fair Dealings for the purposes of reporting news.

    Creative commons be damned as its overruled.

    Although didn’t provide significant acknowledgement of the work. i.e attribution so could be liable as a breach under our laws.

    Also interesting to note how different our fair dealings is to US fair use. We have a much clearer provision for reporting news.

    I am genuinely amazed at how few people in media organisations have read the copyright act, its fairly important y’all.

  30. Andrew Bolt & Gina Rineharts love child
    25 Jan 13
    5:26 pm

  31. OMG bloggers would never do anything as unethical as this.

  32. Duncan Riley
    25 Jan 13
    6:10 pm

  33. The big thing here is if it was the other way around, that a new media site or blogger accidently posted a pic or 2 from Fairfax or News Ltd they’d go straight to lawyers, as I discovered some years ago when a contract writer posted some News Ltd shots on a site I then owned.

    You’ve got to love how they call mum when they’re never quite as understanding when the situation is in reverse.

  34. Good Moron
    25 Jan 13
    6:34 pm

  35. This will happen from time to time – just send them a bill.

    Anyone with good photos can use TinEye for free to check where else they’re being shown on the web:

    or use Google image search.

    TinEye has a great Chrome extension to check photos as you go.

    And think about how much to charge – anyone who has used a Getty Image by mistake will know that you’ll get a bill and legal letter in the post for about $1,200 per image. Sounds like a good starting point.

  36. Jason
    25 Jan 13
    7:18 pm

  37. @ Oscar. Understand your views but your comment about thus giving publicity to Trey’s work is a but much. Clearly the SMH should establish ownership a.crefit the artist on the photo, hence giving Trey more publicity than this does.

  38. Sally R
    25 Jan 13
    8:24 pm

  39. Gees, Steve Martin and Brett Y – seems a rather fierce overreaction. As long as there are Obeids roaming around, I want the Herald’s journalism to keep them accountable as possible. Long live it. This, on the other hand, is a picture of a duck – a lovely one indeed, and I’m sure the photographer’ll get paid.

  40. GeneralColin
    25 Jan 13
    11:14 pm

  41. In response to @Trevor Connell above: “Trey for some reason does not include the IPTC info in his files.”

    I guess you’re unaware that Twitter, for some reason, deletes all metadata as part of the upload process. As does Facebook.

  42. Penguin Alert
    26 Jan 13
    11:58 am

  43. This sort of thing seems to happen constantly at agencies too. Photos stolen and used, illustrations stolen and used, commercial fonts taken and (very) slightly modified before being sold to the client as a “corporate” font.

  44. Technojames
    26 Jan 13
    3:38 pm

  45. Jimbo, I think you’re getting a bit confused.

    You can’t take a photo of a known celebrity and use it to promote a product because there is an implied endorsement.

    This is a separate issue of using someone else’s photo.

    And no, newsworthiness under fair use would not apply for a number of reasons that I’m too lazy to write up…

  46. Adam H
    27 Jan 13
    8:16 am

  47. Facebook doesn’t delete metadata – it even shows the copyright status in the caption of the photo.

  48. Barry
    27 Jan 13
    10:00 am

  49. SMH – you guys are unbelievable… don’t you research the images you print ??!!

  50. Ed
    29 Jan 13
    2:06 am

  51. Watermarking your photos provides no guarantee of protecting them from copyright infringement. My Blog site features watermarked photos and I ended up discovering more than 10 of my photos and many other peoples were ripped off by a for profit magazine who used them for print magazine, website and Facebook. They dismantled the photos and added their own watermarks. They claimed it was an innocent error – umm yea OK.
    Story here

  52. Ed C
    3 Feb 13
    11:32 am

  53. I’m not sure why they think their internal deadlines are relevant. That’s a bit like saying “You see officer, I was running really, really late, so I HAD to speed”.

  54. quixotic
    4 Feb 13
    1:59 pm

  55. any chance of a “wayback” link to that SMH article – they have pulled it! (LOL).