By Teresa A. Martin
It is no secret that once content is in digital form, it more mutable, transferable, and multi-purposable than it is in its analog state. Digital music, digital video, digital photos, digital text ... it takes just a few clicks of a mouse to grab it, a just a few clicks more to adapt it for another purpose.
Which is precisely why the creative community, including the American Society of Media Photographers (ASMP), the Illustrators Partnership, and others have been speaking very loudly these past few months.
Well, if you aren’t in the creative/media sector or in the US Congress maybe you haven’t heard the howls, but trust me, there are howls. And they are howling about some pretty important issues.
In March, the House of Representatives discussed something known as “Orphan Works” legislation. This month the US Senate is exploring it. The Copyright Office proposed this plan in January. What is at stake is the relative rights and responsibility in using digital information when the owner of said information isn’t clearly identified.
The nitty gritty details can feel a bit mind-boggling but the short version of the issue is this:
There are lots of images out there in digital form. If they aren’t identified with a copyright and contact info, are they free for the taking and use?
There are clearly huge numbers of issues. Let’s be real – who hasn’t used or adapted an image for a school report, a PowerPoint at the office, or something similar? Technically, this may be wrong.
But the use that the creative agencies are really -- and very fairly -- howling about is something on a much larger and for-profit commercial scale: Say, the use of photo in an ad campaign or the use of an illustration on packaging or the use of an altered image in an annual report. In these last cases, they are places where a working artist’s work should be fairly compensated but through random digital copies may loose that protection.
In my innocent creative days, I’d have thought this simply wasn’t possible. After all, wouldn’t a corporation know better? But then I was assigned to work on an annual report for a small public company. The company’s marketing manager flipped through the book of stock photos (it was paper back then, of course). She selected a black and white image of some sort landscape and declared this was one that must be used. I confirmed that she wanted me to order it and she looked at me aghast – “Can’t you just have the printer copy it?” she demanded.
Oh.
Luckily, you couldn’t really ‘just copy’ a printed photo for high-resolution print reuse but it was an eye opening moment.
That sense of ‘just use it’ is very much alive and well, even from places that should know better and can easily afford to do better. Part of the argument for the Orphan Works legislation is that people shouldn’t be penalized for using visual art that is ‘unclaimed’ and lying around the web.
To use found art under this proposal, all one need do is perform a “reasonably diligent” search for the owner. If you pick up the box of cornflakes off the shelf and recognize your image on it, your only recourse is either to receive normal going rates IF the infringer want to keep using image or no compensation if the infringer no longer continues to use it.
That annual report isn’t going into multiple printing. Ooops, I’m sorry, we won’t use it again is about the total remedy for the visual artists in that case.
“But shouldn’t artists ID their work?” you ask? No really good embedded and widely used copyright scheme has become a working standard. There have been many attempts, as well as attempts at registries and the like, and for various reasons they haven’t gained broad use.
The reality is that your photo or art may be borrowed, used on a site borrowed by yet another site and 16 iterations later you spot it in use. No one along the way, except for possibly the first borrower (who may well have used it perfectly legally), may have had a clue that you created it and considered it your intellectual property.
Quite a quandary!
The answer isn’t set in stone yet. The Orphan Works legislation is still under discussion. But it is the sort of thing that can slip through the cracks. And not be noticed until one day you see your photo or artwork someplace where you least expect it: benefiting someone else, with no compensation to you.
Become a Member
