"The Zidane smoking photo - a cautionary tale about ownership, copyright and licensing."

Kyle MacRae, head of citizen journalism picture agency Scoopt, writes about the problems that can occur sourcing and licensing photos that are simultaneously being distributed on the web for free.

It's a little known fact that the real reason for Zinedine Zidane's bonkers behaviour in the world cup final was nicotine withdrawal. And how do we know this? Because Scoopt licensed a picture of Zidane smoking just a few days before.

It was published in the Mirror, Sun, Independent and Guardian and shown on television. The photographer made a pile of money. But herein lies a story - indeed a cautionary tale - about ownership, copyright and licensing.

Scoopt received an email from somebody claiming to have said pictures. Great! Having already passed up shots of the French team peeing against a fence during training - Gallic willies just aren't our thing - this sounded promising.

A moment's Googling informed us that Zidane had spearheaded an anti-smoking campaign in 2002, so we even had a news angle (admittedly tenuous) to add context to the pap snap. We asked the chap to sign up with Scoopt (we only handle content submissions from members, for reasons that will become apparent) and finally, after some further persuading, he sent them in.

The Mirror picked up one of the pictures the next day and the Sun the day after that. The Sun being the Sun also published it online.

A couple of days later, we took a call from a perplexed punter in Germany who had spotted one of the Zidane pics on an Italian newspaper website. La Repubblica had lifted it from the Sun's site without credit or payment but what concerned us more was this guy's claim to be the photographer.

How had we ended up with the pic, he wondered? How indeed, we wondered back. But of course you already know the answer: he had emailed the pics to a few of his friends and they had emailed them to a few of theirs and suddenly Zidane's fag break had gone viral.

Here we were trying to broker high-value commercial deals on what was now essentially, if not legally, public property. Any number of people could lay claim to them. Two already had. And one of them was lying to us.

We asked the new claimant for proof and duly received it. We interviewed him twice, he provided the original snaps, he took some new photographs from the same viewpoint (inside an office overlooking the French team's hotel) and he signed a contract testifying that he owned the copyright. We put some good old-fashioned journalistic pressure on the original claimant and he quickly crumbled. We felt we confident that we had established rightful ownership. All was well.

But then we discovered that a German newspaper had also published one of the puffing pics. Worse, it had paid 1,000 euros to somebody different again in a 'readers' pics' promotion.

So began round two, where we had to prove our right to sub-license the pictures and submit a retrospective claim for payment. Eventually, the matter was resolved satisfactorily. It's worth noting that the newspaper was fully sympathetic to our case and determined not to pay the wrong person.

Are such hassles the inevitable consequence of opening the mainstream media doors to the public? Yes, in a word. In a perfect world, it's very helpful to all concerned - content creator, content broker and content publisher - if images and videos remain private until the point of sale but that’s just not going to happen every time. It's also helpful if everybody tells the truth all the way down the line but that's not going to happen either.

To help us on this score, Scoopt only brokers content from registered members who sign up to our terms and conditions, among which we stress that you must hold the copyright to anything you want to sell. If you falsely claim ownership of somebody else's content and profit by it, you're likely to feel the sharp end of a writ. That's a pretty powerful dissuader. It helps us steer clear of Dorset elks.

What then of value? 'Citizen journalists' - as distinct from professional photographers - don't always appreciate that content can be commercially devalued by dissemination on the web. But nor do they necessarily care. If you capture a breaking news story, you might want to share the story with the widest possible audience as quickly as possible, with financial gain a distant consideration or of no concern at all. But can you do both? Can you share and sell your content? Does a copyrighted picture that's all over the web still have value in print, or a video submitted to YouTube have value when broadcast?

Perhaps surprisingly, our experience says yes. In the Zidane case, we licensed the images several times over in print despite widespread and simultaneous appearance electronically on blogs and football sites. Picture editors could have lifted them for free but didn't. I find that encouraging. Of course, it's in part because we made their lives easy by pushing the content to them in an industry-standard manner, but also (and I hope I'm not being too naïve in saying this) I think it's because most picture editors, so many of whom are themselves photographers, would rather spend their budgets fairly than exploit amateur snappers.

In any case, we'll see. Scoopt is working with MoblogUK to test these waters. Any MoblogUK member can post a picture in a shared web space and we'll look after commercial rights. We'll make no attempt to inhibit the dissemination of moblog content on the web for non-commercial purposes, but equally we remove the excuse to lift content freely for commercial use. If a Zidane pic or something like it appears in there tomorrow, a media outlet could just grab, publish and worry about it later - or it could click the Scoopt button and play fair. We're banking on the latter. In a world where content is digital and essentially unprotectable and untrackable (daft DRM nonsense notwithstanding), I'm not sure that there's an alternative.

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