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:
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?