Orphan Works = Finders Keepers?
June 16, 2009 by David Bergman
I try to keep this blog about photography and technique, but if you’re a photographer, writer, painter, or producer of any kind, you need to be aware of some legislation that is kicking around in Washington, DC.
It’s called orphan works and it could have a major impact on your business.
In the United States, every time you press the camera’s shutter you own the copyright to that image (unless you’ve signed a contract in advance stating otherwise). Many people who create intellectual property — including yours truly — make a living by licensing the use of their work to others. I make sure that my clients have all the usage they need, but I usually keep the right to license my photos in the future.
For example, I shot this photo in 2003 of fans celebrating at the Ohio State-Michigan football game for Sports Illustrated.
Since then, the image has been licensed through my agency Corbis numerous times including a lucrative Fossil watch ad.
The copyright to my photographs is my property. It’s up to me to decide if and when I want to license it for commercial or editorial use. There may be times when I don’t want my images used in a particular way. For instance, I don’t allow my celebrity images to be used in tabloid publications. I also can negotiate a license with a client whereby the images from a shoot can’t be licensed by another company in the same industry for a certain amount of time.
Orphan works refers to work where the copyright holder can’t be found. The proposed legislation basically says that if the owner can’t be identified, then the work can be used without penalty. If the copyright owner comes forward later, the infringing party simply has to pay the going rate for the license and can continue to publish the photo.
The orphan works legislation is essentially saying, “Finders, keepers.”
It’s akin to finding a vacant lot and building my house there because I don’t know who owns the property. To stay with the analogy, if the land owner comes forward after I’ve already built the house, I simply have to pay him whatever the going rate would have been on the property. It doesn’t matter if the land wasn’t for sale or if the owner had already promised it to someone else. I would not face any fines or go to jail for stealing the property.
In the real world, if I want land for my house, I have to find property that’s for sale and buy it. The act of licensing photos is the same.
Seems pretty straightforward to me.
Last week during the World Copyright Summit, Sen. Orin Hatch (R-UT) said that he was actively pursuing the passing of orphan works legislation and may re-introduce the bill in the coming weeks. You can read more of his comments on John Harrington’s photo business blog.
Please let your Congressional representatives know that you oppose orphan works legislation.
Whether this bill passes or not, you should do everything possible to make sure that your images can be identified as your own. This includes embedding a copyright notice on the photo (as I did on the image above) and also making sure that your files have metadata stored in them with at least your name and contact information.
These steps aren’t difficult to implement into your workflow and will help to protect your rights for many years to come.
Thanks for making me aware of this. Although I’m not American, what happens there tends to have an impact on other parts of the world. I actually updated my metadata templates a week or so ago, so hopefully I’m somewhat protected.
That is a GREAT analogy David. Never really thought about it that way.
I tell you, I have heard pros and cons for at least a year (John’s and others cons, Heller’s and others pros). As I have pointed out on John’s blog, I really would like to read a legal opinion from a copyright attorney on what he/she thinks the impacts would be to us as photographers before I enter the fray. So far, none have stepped forward with a real analysis. Do you know one who has? I would like to read it because if this will negatively impact us as bad as everyone is thinking, then I want to step forward, but if it will not… I have been monitoring the “Photo Attorney” blog for a real tretise but she hasn’t gotten around to it yet. I guess I am saying I want to choose my fights.
If you happen upon something, please post a link to it. Thanks.
Tim
David
Great Blog. You outlined your concern regarding a potential Orphan Works legislation and how that may impact your exclusive copyrights. But, I am wondering how your subjects may react when they realize that their likeness was used in a lucrative Fossil Ad. According to Corbis, the image in your blog, does not have a Model Release. What has been your policy regarding subjects?
****************Corbis********************************
Standard RM (RM)
DWF15-532409
NCAA Football 2003 – Michigan vs. Ohio State
Michigan freshman Diana Schorry, 18, is lifted by Michigan fans, after Michigan scored with 7:55 left in the fourth to go up 35-21.
IMAGE:
© David Bergman/Corbis
DATE PHOTOGRAPHED
November 22, 2003
LOCATION
Ann Arbor, Michigan, USA
PHOTOGRAPHER
David Bergman
COLLECTION
Corbis Sports
*
* Restrictions
*
Model released: No Release
Property released: No Release
* Not available for use by or for ESPN print and electronic media.
* Not available for use by or for tabloid print publications or tabloid broadcast programs.
* Not available for “royalty free” licensing.
* Corbis represents exclusive rights to this image.
Richard,
I actually do have a model release from Ms. Schorry for that image and she is fully aware of the ad. When writing this blog post, I also noticed that the image was listed as “no model release.” I brought it to my editor’s attention and sent him a copy of the release. I believe the mistake will be corrected on Corbis.com shortly.
I do not allow any commercial use of my images without the proper forms in place. Editorial use is fine, of course.
There are situations where the images can be used commercially without getting the model release signed myself. For example, I once licensed a Bon Jovi photo for a Verizon ad. The two parties already had a deal in place for the band to endorse the product and they had covered the releases on their end. At that point, it’s just a matter of them finding the best image for the ad.
Does one need to have an intellect to obtain intellectual property.
I believe the bill does not intend to hurt living photogs, i believe its to stimulate the the profits of photo labs such as the ones located in your local walgreens, meijer, walmart etc.
Ive went to have old images color corrected and printed many times and was turned away because the photog held the copyright.
For example i had a family photo taken in the mid 1970’s, i was just a baby and the guy that took the photo weather it being from sears, hudsons, etc. back in the 70’s i dont know, as far as i know the guys dead but theirs no way to find out so im fucked out of getting a great photo restored, and the lab is screwed out of potential profits.
Imagine this going on in the whole U.S. thats a lot of lost profits for industry.
I dont think i will hurt living photographers.
Sure Thing – I’m with you in that I believe the INTENT of the bill is to help consumers and not hurt professional photographers. However, from what I’ve read, the language in the bill is very broad and will leave too much ambiguity. If they simply tighten it up to cover uses like the one you mention, I’d have no problem with it.
Having said that, I have not heard any recent info on the bill and am not sure of the latest status.
——-
I agree that copyright protection is very important for any creative endeavor and for every author, painter, artist, or photographer.
FYI. - I know that student (being tossed) in the photo. She is my daughter!