Playboy is suing Harper’s Bazaar publisher Hearst for $1.35 million over publication of nude photos of Kate Moss (that’s $150,000 per image).
The thing is that Harpers Bazaar wasn’t actually the site publishing the nude pictures. Instead it was linking to another site which had posted nine images from the shoot under the title “Save yourself a fiver. Here’s Kate Moss’ NSFW spread from Playboy”.
As part of the filing (I can’t find an actual copy of the lawsuit so these are quotes taken from the reporting of the subject) Playboy says that it “welcomed the media’s reporting and discussion of its images” but that “Hearst’s link to the Entertainment.ie website page cannot be justified by any suggestion that Hearst was reporting the news of Ms. Moss’s appearance in the 60th Anniversary Issue.”
It’s those comments which made me wonder whether the general public know how magazine covershoot reporting tends to work. It used to be part of my job so here’s a basic account:
A magazine will do a shoot and interview with its cover star. It will then send a selection of the photos and sometimes a few headline-worthy quotes out to websites and newspapers for them to use in articles.
The system has an obvious benefit for the magazine in terms of free publicity but what’s in it for the websites and papers? Why feature a competitor?
The answer is “quality” and “quantity”.
Magazines still set aside swathes of budget for photoshoots with production values and levels of access that a lot of websites and dailies can only dream of. Taking the magazine’s shots is a way to get premium images and juicy quotes into your publication without having to pay the production costs.
The Internet and the daily publishing scene are always hungry for content. Taking up these images and quotes can mean at least one extra news story or perhaps a picture gallery if you’re online resulting in more space filled and more page impressions for your publication. It’s why sites are constantly featuring tweets of the rich and the famous – there will alway be an audience for name recognition and the smaller you can carve up the news snippets the more articles (and page views) you can generate.
But the covershoot back-scratching above usually begins life as an email with a hefty dose of legalese attached. There are usually agreements to sign and return if you want the right to use those high quality pictures and they include a raft of stipulations regarding the coverage. Amongst the things I’ve seen magazines specify are:
- How many images you can use
- That the magazine title must be mentioned in the first line of the first paragraph
- That no negative or critical language may be used in the article relating to the celebrity or the magazine
- That the magazine cover image MUST appear in the article
- That the magazine cover must appear no smaller than a certain pixel or inch size
- That the publication date of the magazine must appear along with a link to the magazine’s website
- How many thousands of pounds you will be liable for if you break any of these terms
To my recollection none has ever specified that you must not link to sites which contain the entire feature or shoot but that would clearly go against the spirit of everything I have outlined above – that is to say a mutually financially beneficial arrangement that can’t be classed as advertorial because it isn’t advertorial but sits in an advertorial-adjacent grey area.
In terms of the Kate Moss Playboy pictures, I’ve been looking at the initial reporting regarding the photoshoot. The articles are clustered around 2-3 December (likely when the embargo broke) and feature the same set of clothed/covered up pictures of Kate Moss all with similar credit lines.
I don’t work in that industry anymore so I can’t say for certain but comparing a number of different articles I’d guess Playboy seeded three photos from the shoot as well as the cover with the requirement that they were all credited to Mert Alas and Marcus Piggott for Playboy. They probably also stipulated that the sale details for the magazine and a link to the Playboy website appeared and I’d assume they added in the standard clause regarding negative remarks about Playboy and Kate Moss.
In terms of the Harper’s situation, my guess is that the agreement with Playboy (if there even was one – after all, the article as it currently appears doesn’t use any of the images likely seeded by Playboy) didn’t make an explicit “no urls to people posting the rest of the shoot without our permission” clause and so Harper’s decided to take the risk, inflating the page views for the article by catering to those looking for the pictures of Kate Moss in the buff but not actually hosting the content themselves.
How the lawsuit develops and to what extent Harper’s Bazaar can be held legally responsible for an infringement conducted by another site will be of interest professionally but I would also be more than happy if this situation provokes a discussion of the practice of reporting magazine shoots. They’re not advertorial so legally speaking you don’t have to mark them as such, but you’re often posting content with restrictions imposed from outside in the same space you use for content which has no such editorial restrictions imposed upon it. To my mind that’s problematic.