Tuesday, March 28, 2006
We posted two sets of examples of images taken from contemporary websites and suggested that indeed they would be difficult to trace if they appeared out of their original context and without any metadata.
Mr. Brito suggested that our examples are "disingenuous" because we didn't state the exact site where the images were found and we displayed the images without file names or metadata. His argument is that if we had simply identified the original website where the images were found, then the first step in a diligent search would of course be to ask the site owner where they came from. He implies that a search really would be quite easy.
In fact, this is exactly our point. If you see an image on cnn.com or apple.com (two of the sites used in our sample) you can indeed contact the company and will most likely find the copyright owner.
The problem arises when images are removed from their original source. Photos can easily be dragged from a web browser to the desktop. They can be copied and uploaded to secondary and tertiary sources. Even the major websites often strip metadata for performance reasons. Whatever the cause, once removed from its context and stripped of identifying data even a properly licensed, well attributed image becomes extremely difficult to trace.
This does not always result from illicit activity. It is a major problem for reputable photo buyers. At a recent educational conference of the American Society of Picture Professionals, whose members include researchers from all the major publications, along with stock agencies and corporate photo buyers, art directors spoke of how difficult it is to track images where the metadata or attribution is missing. They often work on publishing projects which require thousands of images. Researchers find images on Google, or download them as comps from stock agencies, or discover them in their own archives from previous projects. File names are often changed. Metadata can be dropped when images are copied. Often art directors want to use an image and find identifying data is absent. Digital asset management systems costing tens and hundreds of thousands of dollars do help keep track of most images, but it is a monumental task.
More problematic of course are people who will seek to abuse the system by deliberately removing source, attribution and copyright information. If the intent is NOT to find the copyright owner then crafting a "diligent' search with that aim in mind would not be difficult.
Stock Artists Alliance, ASMP, EP, APA and other artists' associations all work very hard to educate members and clients about the importance of providing complete metadata in every file delivered to clients. Recently a consortium of photography groups published a newly updated set of guidelines under the banner of UPDIG. Photography associations continue to work with Adobe, IPTC and other vendors and groups to be sure the technology robustly supports key metadata needed by suppliers and buyers alike. Further changes to digital technology may indeed one day make tracking images easier.
Yet despite photographers' best efforts, such key information cannot be guaranteed to stay with the file.
Brito adds a second point about attribution, alleging that "authors/owners today feel free to release those works without attribution knowing that they will retain their full rights." Unfortunately this represents a misunderstanding of the standard business practices of professional photographers. Amateur photographers might be cavalier about distributing their images with abandon to everyone who asks. You'll see little copyright attribution on Flickr. But professionals well understand how essential it is to correctly and accurately identify every images which leaves the studio. A review of association websites and event schedules will see a wealth of seminars, tutorials and guidelines on proper delivery and attribution of images and how to diligently register images with the Copyright Office.
What happens when images leave the studio is another matter. Standard practice in many media (TV, print ads, brochures etc. ) is not to include attribution. Even in editorial publications where attribution has been the norm, it is still not guaranteed. To suggest that photographers press for better contracts, in a world where publication contracts are already heavily publisher-friendly, is itself disingenuous.
Further, to suggest as Mr. Brito does, that photographers would actually encourage unattributed use so "they will be able to pop out, sue, and collect heavy damages from an unsuspecting user who couldn’t find them to ask for permission" is just preposterous. Anyone who has pursued a copyright infringement case knows that it seldom is a fruitful exercise.
The problem with attribution is that, like metadata, it is too easily removed. Careless or unscrupulous operators can clip, snip, copy and flip and suddenly there's no record of where the printed picture in a magazine came from.
Imagine a law that said that an automobile owner was responsible for keeping license plates on her car and the registration in the glove compartment and that if the car were stolen, and the plates and registration removed, anyone who found it would get to keep it.
A proper solution to the orphan works issue would be carefully crafted and narrowly focused to avoid this kind of abuse.
Tuesday, March 21, 2006
It was easy enough to find them, but would not be easy to find some of them again.
None had file names that were helpful, and none had any metadata at all.
So if you cannot locate the source after doing your own “diligent search,” should you feel free to use them anyway?
If you did - and Orphan Works legislation passes as proposed, you wouldn’t have to worry about infringing on the copyright owners or their representatives who are..
A Major Right Managed Stock Distributor
A Contemporary Illustrator
A Small Historical Collection
A Royalty Free Stock Distributor
A Large Public Library
A U.S. Government Site
If you can find the copyright owner of any of these, or if one of these is your photo, add a comment below.
Visual artists are sympathetic to these concerns. A carefully crafted, narrowly focused proposal could indeed resolve the issue.
Instead, what we got from the Copyright Office is an extremely wide-ranging exemption from liability for all users, for all works, in vaguely defined circumstances, along with the removal of effective deterrents for infringement in cases far removed from museums and libraries.
It is like a homeowner who has trouble with the front door key jamming at night in the dark and calls a locksmith for help. After careful study the locksmith comes up with a solution - "to remove the front door." Not a great idea!
It turns out that a lot more than historical archival works are potentially affected, and a lot more than just photographs.
Copyright protection also extends to textile designs, carpets, quilts, and clothing. It covers jewelry, sculpture, stained glass and wallpaper. It includes prayers, tattoos, fonts, advertising jingles and sheet music....and more.
Imagine how readily a user could come upon one of these works, search for the copyright owner, and then proceed to use the work as an "orphan."
Copies of a fabric design found in an Asian flea market, the melody of a half-remembered hymn, the letters of a purloined font found on the internet, a quilt bought long-ago at a country fair. All of these are fair game under the current proposal.
It is a lot more than photographs that are at risk.
Saturday, March 11, 2006
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
Thursday, March 09, 2006
Washington, DC - March 8, 2006 - Testimony is delivered on the Orphan Works Proposal to the Committee on the Judiciary. (l-r) Maria Pallante, Guggenheim Foundation, David Trust, CEO of the Professional Photographers of America (PPA), Allan Adler, of the Association of American Publishers, and Jule Sigal of The Copyright Office.
Audio mp3's of March 8th hearing
part 1 part 2 part 3 part 4 part 5
David Trust, PPA
Allan Adler, AAP
Jule Sigall, CO
Maria Pallante, Gugggenheim
Wednesday, March 08, 2006
Following is some of the commentary from the trade organizations that represent the interests of stock photographers and distributors, illustrators, photojournalists, editorial and advertising shooters, along with respected journalists…
"The solution proposed by the Copyright Office to the problem of museums and libraries use of archival materials, is too far-reaching and has too many unintended consequences. It would make it impossible for photographers to get a fair return if an image is orphaned'.
"We urge the user community and the House Subcommittee to work with us to amend the proposal to maintain effective copyright protection for creators."
- David Sanger, President, Stock Artists Alliance (SAA)
“The entire stock photography industry depends on a robust copyright licensing and enforcement regime. Loosen the restrictions and unauthorized use will skyrocket.”
- Jim Pickerell, Selling Stock
“For artists, this legislation would be a major revision of copyright law. In effect, a repeal of the 1976 Act. The Orphan Works Report calls for a 10 year “sunset provision,” which means that the legislation will be subject to reevaluation in 10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them.”
- Brad Holland, Illustrators' Partnership of America (IPA)
"It will practically make photographs public domain."
- Nancy Wolff, General Counsel, Picture Archive Council of America (PACA), as reported by PDNonline
"The proposed legislation allows the user of an image to declare it an “Orphan Work” too easily. It sets the bar too low, putting no clear burden on the user to determine the author of a work which carries no authorship information. For example, a web-designer who finds a photo from an old print advertisement for a company now out of business can claim to have tried to contact the company to no avail and declare the work “orphaned.”
- Chris Ferrone, About the Image
“This proposal is a disaster for visual creators. It is heavily slanted in favor of users. If this statute is enacted as it, we can pretty much kiss our careers goodbye.”
- Lisa Shaftel, National Advocacy Committee Chair Graphic Arts Guild (GAG)
"In my opinion, if that language is enacted in its current form, it will be the worst thing that has happened to independent photographers and other independent visual artists since Work Made for Hire contracts.”
- Victor Perlman, General Cousel and Managing Director American Society of Media Photographers (ASMP)
"Proposals in the Orphan Works report would make it easier for people to use your images without your permission, and make it harder for you to collect the money you're owed when they do. This should concern photojournalists, because many published images are copied and recopied without permission. If credits are removed in this process, making it difficult to identify the copyright holder, the image could be considered 'orphaned.'"
- Alicia Wagner Calzada, President National Press Photographers Association (NPPA)
“While well-intentioned, the Copyright Office’s proposal would strip thousands of photographers and other visual artists of their rights. Unless major modifications are made, legislation based on this proposal would disastrous.”
- David Trust, CEO Professional Photographers of America (PPA)
“While this proposal could cause serious problems and financial loss for creators of all kinds of original works, it could be especially devastating for commercial photographers and illustrators whose work is often published without attribution. Worse yet, intentional infringement -- not uncommon in this digital age -- could easily result in many works being declared "orphans" under this proposed legislation. Illegal infringers rarely provide attribution.”
- Ron Rovtar, The Stock Asylum
“Given the infrequent use of photo credits beyond the editorial print world -- advertising, corporate publications, and much of the internet make use of photographs sans credit -- photographers face the very real threat of having their published photographs eventually counted as Orphan Works.”
- Shawn G. Henry, VP, Editorial Photographers (EP)
Watch entire the webcast(updated)
Monday, March 06, 2006
Stock Artists Alliance Launches Blog on “Orphan Works”
March 6, 2006. The Stock Artists Alliance has launched a blog to provide up-to-date news and commentary to the stock community on proposed "Orphan Works" changes to US Copyright Law.
This legislation, as proposed by the U.S. Copyright Office, would pose a serious threat to stock photographers by removing protections from unauthorized use of our images. The bill, now in draft stage, is being "fast tracked" through Congress and has a good chance of passage before the end of the current session.
SAA is fully engaged on the "Orphan Works" issue and we are working to advocate changes to this bill to preserve our copyright protection. We have joined with fellow trade organizations to form an active Coalition of that has quickly come together to fight this threat to the livelihood of independent artists as well as those engaged in the distribution of our images.
What SAA brings to the Coalition, and to both legislators and supporters of the bill, is an understanding of the Stock Photography business. We hope that by articulating our concerns, we can help to persuade Congress of the need to preserve the copyright protection for photographers in their drafting of “Orphan Rights” legislation in the coming weeks.
There will be frequent updates and commentary posted to SAA's Orphan Works blog at http://orphanworks.blogspot.com/
SAA is a global trade organization dedicated to protecting the rights of stock photographers. For information about SAA's programs and initiatives, visit the SAA web site.
David Sanger, SAA President
Betsy Reid, SAA Executive Director
Leif Skoogfors, SAA Board and Legal Chair
On March 8th supporters of “Orphan Works,” which include the Copyright Office, will give testimony before a Congressional Committee. This is the first step in any legislation and SAA will be at hearing. After that date, there will be a brief window of opportunity for comments to be added to the record as Congress prepares to draft final language for the bill. SAA will be actively participating in this process. While it seems clear that an Orphan Work bill will be passed, we have the opportunity to help craft final language.
SAA is a small part of a large coalition that has quickly come together to fight a threat to the livelihood of independent artists as well as those engaged in the distribution of our images. What SAA brings to the coalition, and to both legislators and supporters of the bill, is an understanding of the Stock Photography business. We hope that by articulating our concerns, we can help to persuade Congress of the need to preserve the copyright protection for photographers in their drafting of the “Orphan Rights” legislation. Please be prepared to do your part when we again call on you to communicate to your legislators. There will be frequent updates as we move forward.
SAA Legal Chair
Sunday, March 05, 2006
Neither of these assumptions are generally true in the case of images found online. To test the first assumption, Stock Artists Alliance examined every image which was found on the top 30 websites according to alexa.com (the home page or in some cases a secondary page). Also included were a couple of leading library and museum sites.
Of the 144 images which were copied and examined, how many had embedded copyright information? None! That's right, not a single one! Only two of the 144 had identifying info on the front of the image.
One can be quite certain that almost all of the images, photographs and illustrations, are copyright. Most are likely licensed from major stock agencies, perhaps under an exclusive licensing agreement. Most are likely model released. Some are of famous art works. Some are of movie stars. Some are corporate images no doubt shot on an exclusive commissioned basis.
As a prospective user under the proposed orphan works statue, if you found one of these jpegs on a online database, perhaps from some remote country, how you would do a 'good faith, reasonably diligent search for any of these images? Where would you start? When would you give up?
As a copyright holder, if you found one of these images used online under a claimed 'orphan' status, your only recourse would be to try to get payment from the infringer for the use. No attorney's fees. No damages. No lawyer would take your case.
As a major stock distributor, Getty or Corbis, you would be in the same position, no attorney's fees, no damages.
As the website owner who paid perhaps 4 figures for home page usage, you'd have no recourse whatsoever, even if you had an exclusive license.
As a corporation who had commissioned one of these images for corporate use only, you'd have no recourse either, if your custom image was 'orphaned'. Previously you could rely on the strength of the copyright law, knowing the photographer and you together could go after an infringement and collect damages.
As a model who participated in a photo shoot for one of these images, what recourse would you have if the image was used in a way you didn't approve of, eg. sensitive subjects?
Most ominously, as an entrepreneur who sees these likely "orphanable" images as a potentially lucrative revenue source, how do you......!!!...No, Stop that thought!!!
Take the "reasonably diligent search" challenge!
See if you find the legal copyright holder for any of these images!! Remember, these are some of the most highly visible images on the web. Most images will be considerably more difficult to find.
Here's the selection of images:
All images © the individual copyright holders. In accordance with Title 17 U.S.C. Section 107, these images are displayed without profit for research and educational purposes, and to encourage efforts to preserve the value of and market for these and other copyrighted materials.
Saturday, March 04, 2006
Leif Skoogfors, SAA Board and Legal chair, will attend for SAA.
The hearing will be webcast live starting at 2pm EST
Witnesses will be:
Jule Sigall, Associate Register for Policy and International Affairs, Copyright Office of the United States, The Library of Congress
Allan Adler, Vice President for Legal and Government Affairs, Association of American Publishers, Inc. (AAP)
David Trust, Chief Executive Officer, Professional Photographers of America, Inc.
Maria A. Pallante-Hyun, Associate General Counsel, Guggenheim Museum
The subcommittee chairman is Representative Lamar S. Smith, (R) Texas and members are listed here.
Friday, March 03, 2006
What are "Orphan Works" ?
When the copyright holder of a work cannot be located, it's commonly referred to as an "orphan work." The US Copyright Office has proposed "Orphan Works" legislation that could essentially gut the copyright protection now guaranteed to photographers. As currently written, the proposal offers a huge loophole that severely limits the copyright protection of images that can be classified as “orphan works.”
All users would need do is make a “good faith, reasonably diligent search” to try to find the copyright owner of an image before they call it an “orphan” and use it anyway. If the copyright owner discovers the use, all they would be entitled to is “reasonable compensation” with no allowance for attorney’s fees or means to collect. If the usage has no “direct or indirect commercial advantage,” then the photographer would get nothing.
While “Orphan Works” legislation is aimed at making archival works assessable to museums and libraries, it makes no distinction between these non-profit users and commercial users, nor between historical works and contemporary online imagery. This can only result in a huge potential for MORE infringement of stock images and LESS recourse for stock photographers.
What is SAA doing about it?
SAA has joined a coalition of industry groups to respond to the Copyright Office proposal. Initiated by the American Society of Media Photographers (ASMP), the Coalition also includes the Advertising Photographers of America (APA), Editorial Photographers (EP), Picture Archive Council of America (PACA) Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), and the Illustrators Partnership of America (IPA, which carries with it approximately 40 other organizations).
In the UK, the Association of Photographers (AOP) and the British Association of Picture Libraries and Agencies (BAPLA) have joined the coalition. Although their political clout is necessarily indirect in this matter, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the US market, but also it could set up pressure for similar laws in other countries.
SAA is actively working with the Coalition members and dedicated to assisting in any way we can. As a start, we are posting information and sending out letters to increase awareness across the industry, communicating with decision makers and other interested parties, attending upcoming Congressional hearings, and providing comments and feedback during the evaluation and drafting process.
What can YOU do to help?
Take the time to understand the severity of this issue. There is excellent commentary posted by members of the Coalition that explains the specifics of this proposal and other resources.
Read the ASMP Commentary
Read the IPA Commentary
Copyright Office “Orphan Works” Page
Speak up about it. In the past week alone, many photographers have already responded by writing to their home legislators and the members of the House and Senate Judiciary Committee who will be voting on this bill. More active participation will be needed from you as “Orphan Works” moves forward in coming weeks and months so stay tuned.