Say you’re writing a blog post, and you’re pulling from a bunch of different sources around the Web. Say one of these sources has a great photo—the perfect photo—and you’d love to use it in your post, but you have no idea who took it or how to ask for permission to use it. The source doesn’t provide credit. Other websites have reused this same photo, also without credit. What do you do?
This problem of “unlocatable copyright owners” has been growing for more than a decade. The issue is, as the US Copyright Office put it in 2006, “the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.” Somewhere along the line the problem got a catchier name: Pieces that have been separated from their owners are now known as “orphan works.”
The question is: When should it be legal to use one anyway, even though the owner is unknown? And what should be done to minimize the number of copyrighted works that get lost? On Monday and Tuesday, the Copyright Office is holding public roundtables to try to hammer out some answers to these questions.
Washington has made a major push to tackle this issue once before—in 2008, an orphan works bill passed the Senate but not the House—and since then, the situation has not improved, as ever more uncredited photos have spread across the digital expanse. There’s been so much interest in this week’s meetings that the organizers added an extra audience participation session on the second day to give more people a chance to weigh in.
Often, orphan works are discussed in the context of archives, libraries, or documentaries—instances in which someone finds an old work, with unclear origins, and wants to make it publicly, often digitally, available. But the basic problem should be familiar to any journalist who’s responsible for illustrating posts with pictures and, in particular, anyone who’s tried to write about viral photos.
Journalists, however, are more likely to encounter works that, while separated from their owners, are not orphaned, exactly. It’s more like they’ve been kidnapped.
“If you talk to any photographer, they’ll say yes, they see their work everywhere. It’ll be on free wallpaper sites or free image sites,” says Mark Meyer, a photographer based in Alaska, who has written about the problem. “It gets passed around, and since it’s so hard to keep attribution without putting a big fat watermark on it, no one can link it back to you.” In other words, so many “kidnapped” copies exist on the Web, it’s almost impossible to sort through them in order to find out where a photo originated.
Meyer tries to mitigate the problem by embedding metadata containing his contact information and other identifying details to every photo that he posts. But this metadata is easily separated from the photos. (Sometimes for good reason.) Social media sites like Twitter and Facebook strip it out. Some image resizing software does, too. So if a Twitter feed like Earth Pics uploads a photo and it goes viral from there, it’s that much harder for someone who wants to post—or pay actual money to legitimately license—the photo to find the original creator.
One solution that’s often floated is creating central registries of photos that would make searching for and identifying photos easier. (This helps users, too: Imagine finding that perfect, uncredited photo, and having to go to just one or two websites in order to find its creators, instead of sorting through endless unhelpful repostings on Google Image.) But even that’s not a perfect solution.
“For the photographers, it makes more work,” says Meyer. “There’s one more places where we have to register stuff, and then people end up using a photo because they didn’t find it there.”
Another way around this problem is to use the photo anyway and argue that you don’t need permission, because you’re covered by fair use. Journalists have recourse to this argument, but it’s been most clearly fleshed out—and is more convincing—for institutions like archives, museums, and libraries. In fair use, the purpose of the use matters, and Jennifer Urban, a law professor at UC Berkeley has argued that “allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression.” It’s relatively easy to argue, for instance, that the Holocaust Museum should be allowed to use orphan works in its exhibits and catalogues. It’s a bigger stretch to argue that news-making requires that you post, or worse, sell a viral picture—AFP and Getty Images learned that the hard way, when they distributed a photo, taken by a professional photographer, that a photo editor found on Twitter without proper attribution attached to it.
The sticking point with fair use here is determining whether using the work will negatively impact the market for it. In the case of photographs or other creative work that’s truly been abandoned or forgotten, it is unlikely that anyone was trying to make money from that work. But for photographers, it feels like the fair use argument has been used to justify the use of any and all photographs whose owners aren’t immediately identifiable—including the work that they sell or license to support themselves.
“The problem facing photographers is that vast and rapidly increasing numbers of
people and companies that use photographs are doing so without permission
from the copyright owners and, when confronted with infringement claims, reply
that their uses are permitted by the fair-use defense,” Victor Perlman, the legal counsel for the American Society of Media Photographers, told Congress last year.
“From the perspective of people creating these works, it’s just a big copyright grab, from people in the media who want to use what they can find and not look for the authors,” Meyer says.
One principle that’s much-discussed as a partial fix to this problem from the user’s perspective is “diligent search.” The idea is that if would-be users conduct a reasonable and thorough search for the copyright owner and still comes up empty, they should be protected in some way if they use that work anyway. But it’s hard to say what exactly that search will look like. (“Defining a good faith ‘reasonably diligent search’ standard” is the subject of one hour-plus session at this week’s orphan works meeting.)
The best solution for photographers would be if credit stayed with the image. Getty Images released an embed tool last week that allows its photos to be freely used non-commercially but keeps attribution info tightly packaged with the works. This wasn’t the primary motivation for creating the technology, but it has the added benefit of keeping credit attached to the work Getty shares.
“Embeds gives us the ability to increase the likelihood of those images traveling around the Web with the metadata and attribution,” says John Lapham, Getty’s general counsel and a senior VP at the company. “With embed, there’ll be no excuse for claiming that our contributors or partners images are orphan works. We’ve made it really easy to identify who the owners are.”
It’s always possibly for bad actors to circumvent tools like this. But it might make it easier for the rest of us to find that perfect picture, know where it came from, and use it without worrying.