Saturday, March 11, 2006

The Next Generation: Stock "Orphans" for Commercial Use?

In the world of Oliver Twist, orphans had no rights and were subject to all manner of abuses. If the proposed "Orphan Works" changes become law, the same may be true for a new generation of "orphan" images, especially stock images created explicitly for commercial uses.

It started with a laudable objective: to make it easier for non-profit educational institutions to use culturally valuable material whose authors are obscure or unknown without fear of liability for copyright infringement. The original request by Congress to the US Copyright Office asked for “an inquiry surrounding the use of older copyrighted works whose owner could not be located” and was aimed at “libraries and archives” [letter Hon. Lamar Smith, Jan 7, 2005]

Yet the proposal that the Copyright Office delivered back to Congress a year later went considerably beyond this limited scope by including all commercial works, old and recent, including images found on the internet and un-attributed images found in contemporary magazines and advertising. Furthermore, there's no distinction made between the non-profit educational users for whom the bill was intended and commercial users.

Consider the workflow of the typical stock image user – an art director, designer or corporate art buyer - downloading hundreds or thousands of images every year from stock distributor web sites like Getty Images and Corbis for comps, reference or future use. Any stock user knows that simply downloading an image one day can easily lead to the creation of an “orphan” the next day. Add to this those who are sourcing images from printed material or the internet that are un-attributed.

These creative professionals know that any contemporary image that they'd like to use in their brochures, ads, promotion and web site designs does have an owner and that the source is likely a stock distributor web site or an individual artist.

Identifying the image source can be difficult however - despite the best efforts of the copyright owner -
since creator/contact information is often lost as digital image files are saved, resaved or processed into derivative form. There's also no technological means to ensure that information moves along with the images (such as a "lock" on the metadata), so the chances of losing identification of the image increases as it passes from creator to distributor to initial user to company archive and beyond.

For these reasons, copyright owners are already challenged to manage the rights and uses of their digital stock images. We must rely on licensees to maintain proper identification of the image files in their possession so that they can meet their obligation to properly license images prior to use, or re-use. This is a challenge for them as well, as their collections of digital assets grow, and wholly dependent on their ability and commitment to maintaining an effective digital asset management (DAM) system.

Today, we are assisted by the force of Copyright Law to motivate and obligate these users to properly license our images in advance of use.
Relaxing that obligation - as the current "Orphan Works" proposal would do - essentially de-motivates users by providing them the option for permissable unlicensed use of "orphans."

Worse yet, it would in effect invite image theft. We are keenly aware that intentional infringement of stock images on the internet is already a serious problem, one that SAA has been investigating using PicScout advanced image recognition technology. [Our report of the 2005 SAA/PicScout Study will be released shortly.] It is ironic that as the stock industry is just gearing up to effectively address the issue of unauthorized uses, this “Orphan Works” legislation could undermine it by offering a loophole that will no doubt result in increased theft.

"Orphan Works" legislation was conceived to assist the
museums, libraries and universities who seek to make our cultural heritage available to the public, without any purpose of commercial advantage. We see a world of difference between addressing the need of a library to digitize an older archived work for scholarly purposes, and that of a business who makes use of a contemporary image to promote their product or service. Yet the current language of the "Orphan Works" proposal makes no distinction between them.

Why should commercial users who seek to profit from the use of imagery from contemporary photographers be entitled to do so without proper license under any circumstances? How does this serve the purpose and spirit for which this "Orphan Works" proposal was made?

Betsy Reid, SAA Executive Director


Susan Carr said...

Excellent summary of the Orphan Works situation. Thank you Betsy! I encourage everyone to send fellow photographers to this concise piece outlining the gravity of what we are facing.

QT Luong said...

It is quite ironic that the US Copyright Office, whose mandate is to protect copyright, has delivered a proposal that threatens to weaken them significantly.

Mike said...

Certainly a growing problem. However, my personal advice is to always, always, always shoot raw - thus at least you will have a original file negative to prove your rights