There are two main premises which underlie the Copyright Office’s recent proposal on Orphan Works. They are that 1. copyright management information is usually attached to the creative work; and 2. it is possible to search for the copyright owner.
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 web sites 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. (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!!!
Here’s the selection of images:
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.
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.