The Lee Rigby portrait: a copyright dispute without any heroes

"Fury as Lee Rigby picture is removed from military memorial amid copyright row between MoD and photographer" is the lengthy title of this piece by Mail Online's Defence Correspondent Mark Nicol. In relevant part, this article reads as follows:

The disputed image reached as far as New York

"The picture used to pay tribute to murdered Fusilier Lee Rigby has been removed from an official Roll of Honour to fallen troops after the photographer who took it started legal proceedings against the Government. The image, which shows the 25-year-old wearing his ceremonial uniform, has been seen by millions since it emerged in the wake of his death at the hands of Michael Adebolajo and Michael Adebowale outside Woolwich Barracks in 2013 [you can see the image on the Mail Online website here].

Now the picture has been removed from the Ministry of Defence’s commemorative website after photographer Sam Szymanski claimed defence officials distributed the image without his permission. The photo will not be reinstated unless a settlement is agreed. The row has also led to eight pictures taken by Szymanski of British soldiers killed in Afghanistan – including Victoria Cross winner Lance Corporal James Ashworth – being removed from the Government site, in a move that has shocked bereaved relatives.
...

Szymanski, 62, said he regretted the emotional impact of his legal action but insisted he had tried to settle the dispute amicably before instructing lawyers to contact the MoD on his behalf. [He] said: 

‘I tried many times to get this sorted out before taking this step but officials I spoke to were dismissive. As a former soldier, I appreciate it must be awful for the families to go online and discover pictures of their sons have been removed. But the MoD took liberties and I got ripped off. I’ve made £8,000 from worldwide usage of the Lee Rigby image, that’s all. I’m not cashing in on anyone’s grief but I am entitled to make a living. My action against the MoD is about principle, not money. 

Lee liked the picture and ordered a set for his family. My understanding is, after he was murdered, defence officials obtained a copy of my photo from Rigby’s family. They then distributed it through a press agency and it went around the world. It’s been used thousands of times, most of the time without anyone bothering to credit me".

A MoD spokesman said: ‘The MoD has been approached by solicitors acting on behalf of an independent photographer regarding the use of a portrait of Fusilier Lee Rigby, which appeared on official websites. The MoD has removed this photo from official websites, pending resolution of the issues'".

The Copyright, Designs and Patents Act 1988 (CDPA), despite its length and sometimes obsessive attention to detail, contains no provision that permits the unauthorised use of an image on account of public sentiment, nor one that protects against the effects of private grief.  The Ministry of Defence in the UK has a budget that is £38 billion for 2014-5, which suggests that it could pay the sum requested -- but that massive amount represents the outcome of several years' financial stringency and the Ministry remains under pressure to reduce it further.  The payment of copyright royalties, and presumably damages where rights are infringed, may thus not be one of its highest priorities -- but maybe a bit of in-house copyright law training now could save further unnecessary expense in the future.

One can only feel sympathy for the widow of Fusilier Lee Rigby, an innocent bystander in a copyright dispute which she innocently initiated by letting the Ministry have a copy -- an act which itself falls not so far from being an infringement itself through 'authorisation' under section 16(2) of the CDPA.

Thanks to Chris Torrero for supplying the lead.