Rights To Photos

Unfortunately I don’t have a quick answer…



"If I am doing work for a specific company and they send me wherever, they obviously get the rights to the photos that I take, unless otherwise stated in contracts and what not."



No. Its the other way around. You own the pictures the moment you take them. That’s the law in most countries (or at least signitories to the Berne Convention) and that’s what copyright means…at least thats what it says about Canadian Copyright law here:



Regardless of whether you’re assigned by a client, if you’re freelance and you havent signed the copyright over…you shot em?



You own ‘em.



Unless you specifically sign away the copyright, the images are yours, and remain yours. The only thing they’re ‘buying’ is the right to use the pictures – a right you should be specfying beforehand.



Think of copyright like car rental…Paul Bettings Car Rental Inc. owns a car, but you rent it out. The rental fee the customer pays doesn’t mean they’ve bought the car, it just gives them permission to use the car, for a specific use, for a specific time – that’s whats covered in the rental agreement.



I tell you I want to use the car to visit my aged granny for a day, but use it to go offroading for a week without telling you?



Oops! That wasn’t the deal! The rental agreement states how the car is to be used – on the road, for a day.



So you get to break my kneecaps. I thought I owned the car, but I was wrong. The car was yours all along.



This is crucial for photographers to understand (quite a few sadly don’t…). It’s exactly the same with pictures as with the car rental analogy.



Freelance photographers do not sell photographs. They license them.



You’re not selling the image, you’re selling the usage of the image: Print? Web? Flashed up on a TV news item? A framed print for a wall? T-shirt? Music album cover?



You name it…each usage carries a different fee, and you deal with the client on that basis, by issuing a usage license.



Picture libraries do it every day and it’s about time photographers got to grips with it…because in a digital world, a usage license…which is basically a contract…is the only protection you have from being ripped off  in a world of instantly transferable 1’s and zero’s



This is also why basing jobs on an hourly, ‘half day’ or ‘day rate’ is increasingly inappropriate.



Scenario:  A press conference – a mobile phone company CEO is announcing the launch of some funky new phone. Photographer A is working for a newspaper, Photographer B is working for a design company who are producing the mobile phone company’s annual report.



The conference lasts for one hour.



Same pictures, same cameras, same time to do the job – but photographer B will be working on a much higher fee than photographer A.



Why? because the USAGE of the images is different. Photographer A is shooting for editorial use, Photographer B is shootng for PR and advertising use. Photographer B will have negotiated a fee which could cover using the CEO’s picture in:



The company report

The company inernal newsletter

The company’s website

Press release images used by the company in handouts to the media.

A picture of the CEO hung on the wall of the comapny HQ.



So the fee has nothing to do with the time taken to shoot the images, but reflects the fee of all those uses – basically the revenue the photographer would have earned if he’d billed each use individually.



Photographer B issues a license (usually valid for 1 year) for those uses. If the license is ‘exclusive’ it means he can’t use the images anywhere else for 1 year…so if Business Week magazine calls and asks to use the pic, he has to turn them down.



So this is why an exclusive license carries a higher fee again – it’s akin to a ‘loyalty fee’…a guarantee from the photographer that they won’t sell the image to say, another phone company.



If the license is ‘non-exclusive’ it means he can use the images – in the Business Week case, the usage would be editorial, so wouldn’t ‘cross’ with the mobile phone company use…unless the image was used in a negative report on the company of course…so it’s up to the photographers discretion in that case.



Photographer A’s usage will probably be one use in a newspaper and maybe the papers website, and the fee will reflect this.



As you can see, the scope for negotiation is wide, but licensing images is relatively simple once you boil it down to simple questions – how will the image be used? Editorial or Advertising / PR? In what media? Print? Web? TV etc…For how long will it be used? If Editorial, how big (circulation)? Local paper? National? Glossy magazine?Do they want Non-exclusive or exclusive?



The fundamental thing to remember is that even when you issue a license, even an exclusive one…THE IMAGES ARE STILL YOURS. You still own copyright.



When the exclusive license expires, you can use them again.



If the client wants an exclusive license for ever…it’s still not a copyright buyout – as long as you’ve specified the usage. If the client wants exclusive use forever, but just on the Web – it means you can still use the image in print anywhere else.



Even exclusive use, forever, in all media wouldn’t be a copyright buyout, although your copyright in this case would become meaningless – except if you retained a credit right, (known as your ‘Moral Right’ under copyright law) which means the image would have to carry your credit wherever it was used.



And for that license, you’d charge a MASSIVE fee, to cover all the potential losses of income for the images entire lifespan.



This is why copyright grabs and weasel worded license handovers tucked inside the Terms and Conditions of many websites and organisations are so insidious. Basically, they wouldn’t be using those sneaky terms if they didn’t want to use and profit from your work at some point, even if that profit simply means they no longer have to commission future photographers to shoot images.



Which is why the sneakiest scam they use is to insist that yes, you own copyright – all they want is a non-exclusive license forever, in all media. It’s non-exclusive, you own copyright, what’s the problem?



Well, the problem is that when you try to sell the same image, you’re now essentially competing against your own picture. You can license it, but so can they…and are likely to have more ‘reach’ than you.



They use it on a book cover for one of their publications? Another client who likes the image on the bookcover is unlikely to come to you for the pic – you’ve hobbled yourself – not to mention that if you’ve given them a pic for nothing (you could have made money from that book cover…), they’re hardly likely to pay you to work for them are they? Not when someone else will give them a free pic.



The creditcard company Visa recently used images obtained from Flkr for a massive advertising campaign…now, lets think about why they did that.



As far as I know, Flkr (which is actually owned by Yahoo) doesn’t insist on owning the rights to any images sent to it, unlike for example the BBC, whose image submission guidelines are just out and out theft.



However, a lot of Flkr contributors make their images available using a license – in many cases a Creative Commons license.



I won’t go into great detail about CC licenses here, except to say in my opinion, CC licenses were initially created for computer software, and so mistake the concept of a license with a patent, CC licenses are a complete joke when it comes to photographs (especially photojournalism), are in many cases not enforcable by law anyway…and erode the only existing law which does protect creative workers from economic exploitation – copyright law.



I don’t know if the images used by Visa were paid for, or if so, how much they paid. I do know that advertising campaigns carry very high fees, so hope the contributors in this case got paid well. But if the images were released under some form of CC license, then Visa might not have needed to pay them at all.



So their images may have saved a multi-million dollar company a stackload of cash.



Personally I don’t know why I should want to subsidise a huge creditcard company (other than fulfil my obligation to pay my bill on time…) or any other massive corporation for that matter, but by issuing certain CC licenses, that is what in effect we could be potentially doing.



So, for your own example – assuming you haven’t signed a copyright waiver, you’ll need to have agreed with the company how the images can be used and how they can’t. This should be by mutual agreement and your fee should reflect it.



If the use is editorial, usually once the image has been published, you are free to use the image for any use you see fit…some publications for obvious reasons might not want to see the same image in their competitors publication, at least for a decent interval, and this can be specified in the license, or just accepted informally as an honourable way of doing business.



Assuming they don’t want exclusive use, you can host the images on Flkr – remember even if they had exclusive use, you could arguably do this anyway, as long as you made it clear you didn’t intend to profit from the image…the argument would be it’s for portfolio use (so you could print it in your folio or put it on your website) as this is covered under the ‘Fair Use’ (non-commercial use) waiver in existing copyright law.



However, this would have to be made clear beforehand to prevent any nasty misunderstandings.



Sorry it took so long, and sounds like a MBA thesis. But it’s crucual to understand this stuff…it can be the difference between making a decent living as a professional photographer and being relentlessly exploited.



The Editorial Photographers website is an invaluable resource for anyone wanting to get up to speed with this stuff.

wow..great post Sion…!

Fucking Bravo Sion.  The first time I’ve seen this issue explained in the most basic of laymen terms. Your post should be the reference point for all future queries about copyright and the broke-ass photog.



So Paul, you have it backwards, you own the copyright to the photos that you take unless otherwise stated. It’s your responsibility to make sure there is no "otherwise stated". Unless of course there are a lot of zeros and at least one comma on your check.



I don’t know how flikr works, but if you have signed over your copyright to an image (in regards to an assignment) I would think that you no longer have any rights to said image. Therefore you would technically have no right to post it on any online community/photo-sharing site.. Perhaps I’m wrong here though.



It’s really easy to be rushed when having to sign a contract. Be it for a photo assignment, an agreement with an online photo-sharing community, or when licensing software from other entities for example. Don’t be rushed. Take the time to read the terms. The more youi read them, the more fluent you will be in "legalize". The more fluent you are in "legalize", the less likely you will be to get screwed. Be it an assignment contract, an apartment  lease, a credit card offer, etc…



As far as this site goes (to the best of my knowledge), it is more organic and communal in nature than something like flickr., A means to interact with like-minded individuals and showcase some imagery. Unless there was some Willy Wonkaesque (see the contract those poor saps got rushed into signing in the Gene Wilder film version)  fine print that I missed, LS has no interest in profiteering off the imagery it’s members post. Though I’m sure many members would be quick to donate an image for the purpose of it securing it’s bandwidth.



Read Sion’s post. Then read it again. Then pass it along to any shooter friends you have. It’s important stuff. If you wish to make a viable living doing photography, it’s almost important as proper exposure.

Sion… great post. Thanks man.

Man, this is a lot of useful info!!! Thanks Guys. I was not expecting all this, but, I am reading it, and I am going to read it again and make sure I understand it, then I am going to read all my contracts closer and then I am going to post more questions probably!!



Thanks again, this is a huge help!!

Cheers

Paul

we can easily make this post a permanent resource, in fact I think I will go ahead and do just that. You just post the link in the resources section, and voila.



It is official, this thread will permanently be found under the Legal Advisory chapter of the Resources section.

Important note: http://www.copyright.gov/ You have to register your images in order to get $$$$ for copyright infringement. If you do it after (or never) infringement your a f..ed, then it’s not even worth going to court. I will post an explanation when my son is in bed.

Another quality musing Sion. Worth posting up on f8 and EPUK I think.

I learn more here than I do at school….if only there was a lightstalkers diploma :)

Hello, I am in a bit of a situation and don’t know how to resolve it, I was wondering if anyone could offer some insight into the situation.

I took some photographs on a work assignment (as a Journalist- not as a photographer though I was a professional photographer in the past) and shared them with a co-worker. She in turn gave them to my employer who published them (about 15 images) in the report we were producing(for American Way Magazine, 2 mil + readers monthly) 

 

I had a falling out with my employer after the assignment and never spoke again but my co-worker sent me a copy of the report prior to it being published, it was then that I saw my photos.

 

 

I had registered them when I came home with from this trip with the US copyright office so when I saw the photos in the report I wrote to my ex-employer (via email and registered letter) that they were using my photos without permission and without giving me credit, both in violation of US copyright laws and so on. They never responded.  Then I wrote to the editor of the Magazine and told them that the company was planning to publish my photos without my permission and so on. They never responded either.

A few months later the Magazine came out and sure enough there they were. So the question is what can I do? What are my rights? Do you think I can find a lawyer who would take a case like this and get paid latter? How would you go about dealing with this situation?

 

 

Any help or advice you can offer is greatly appreciated. Thanks Gaby

Sion…I wanted to mention this earlier (months ago) but failed miserably: YOU’RE NOW OFFICIALLY MY BARRISTER! :)))…any problems, i’m calling u….just remember, im a poor photographer and i can only afford guiness or whiskey in lieu of payment. :))))))…cheers, b

Gaby: Sion should soon be here to help out. If there is one smart bloke who can give you good advice, its Sion. :)))

Thank you for the kind words ladies and gentlemen. I charge $100.00 an hour from now on…

Only $100?  You may know something about copyright law, but you need to brush up on the concept of billable hours. ;>)

I keep my costs down. I only have a Canon 5D and a modest crystal meth habit to maintain…

Thank you for all your help Sion, if you ever get to Bali I owe you a beer…… crystal meth might be hard to find here….. take care!

 

The exception to the rule is however, the ol’ “Work for Hire”


“Work for hire is a special term used in the United States Copyright Act. Normally, when a person or group creates a copyrightable work, ie in our case photographs, the person or persons creating the work have a copyright in the work. Thus, the creators can exploit the work and receive money for their creative energies.” (as Sion so elegantly explains above.)


“A work for hire is when a person creates a copyrightable work but does not own it. How can this be? The Copyright Act allows for the copyright to go not to the creator but to the person who hired the creator to make the work. The law treats the creator as if he did not even participate. The employer owns the copyright and it is as if they created the work themselves without any help from the actual creator.”


- www.music-law.com/workforhire.html –


Thus in this situation you’re just a button pusher, the guy who was hired to drive the car, you don’t own the car, you didnt rent the car, you just make sure not to crash the damn thing. You do however get to charge shit loads of money for the pleasure cause you are missing out on all those licensing fees (and in many cases even the right to be credited.)


Take a good look at your contract – make sure you’re that you do indeed walk away with your copyright as if you do sign it away, you might not even have the right to use it in your portfolio let alone post it on the web.

Here is what it looks like

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you
hereby irrevocably assign, transfer, set over, convey, and deliver to the Company, for its own use and enjoyment, and for the
use and enjoyment of its successors, assigns and other legal representatives, as fully and entirely as the same would have been
held and enjoyed by you if this Assignment had not been made, all right, title, and interest, in perpetuity and throughout the
universe, in the photographs or audiovisual works created by you while performing the Assignment (the “Content”). You
hereby acknowledge and agree that (a) the Content has been specially ordered and commissioned by the Company as a
contribution to a collective work, a supplementary work or other category of work eligible to be treated as a work made for hire
under the United States Copyright Act and will be deemed a commissioned work and a work made for hire to the greatest
extent permitted by law; (b) the Company is the sole author of the Content and any work embodying the Content according to
the United States Copyright Act; © to the extent that the Content is not properly characterized as a work made for hire, you
shall assign, transfer, set over, convey, and deliver to the Company all right, title and interest in the Content in perpetuity and
throughout the universe; (d) you shall help prepare any papers the Company considers necessary to secure any copyrights,
patents, trademarks or intellectual property rights in the Company’s name at no charge to the Company; and (e) the Company
has the right to undertake any of the actions set forth in Section 106 of the Copyright Act (17 U.S.C. §106) with respect to the
Content, including, without limitation, the right to sell, license, use, reproduce and have reproduced, create derivative works of,
distribute, display, transmit and otherwise commercially exploit the Content by all means without further compensation to you,
unless otherwise agreed upon in a separate agreement.

Good point, and ain’t that the truth, Nathan. “For good and valuable consideration…”


Here is some W4H pillaging and plundering background information for this important thread:
The phrase “For good and valuable consideration…” has virtually been ignored
in the “work for hire”, or W4H provision of the 1976 US Copyright Act.
Along with the help of applicable Antitrust Laws the provision has been sorely
abused and misused in the way that it’s authors never intend.
It is good advice, Paul, to stay away from W4H now days, unless you are duly compensated!

The “Work-for-hire” (W4H) Provision has become a nasty loophole in the US 1976 Copyright Act that
for obvious reasons freelance artist trade organizations have wanted and/or tried desperately to
change or reform in different ways in the recent decade. Along with this loophole reform an Antitrust
exemption for visual authors properly could do the trick so that U.S. freelance artists can be allowed,
without Big Labor leaching our profits, to join together and influence price setting, boycott W4H
publishers, lobby, etc. I believe these are the two main reasons why U.S. copyright law is so vulnerable
to special interest groups right now.


Antitrust laws are and were intended to encourage competition in the free market. In the U.S.
Copyright Act, Antitrust laws have worked against their intended purpose by keeping individuals
and freelance small business owners fragmented and therefore allowing them to be contractually
threatened as a whole cottage industry by large corporate control groups.
In other words and in this case, when Antitrust laws are applied to the Copyright Act, they are
not functioning in the best interest of a free market but rather are working to prohibit it.
If anything besides the “work-for-hire” provision needs to be reformed or amended in the Act,
then to be fair an Antitrust exemption should be first on any agenda. See this link for a
recent argument filed in March 2005 with the U.S Copyright Office:
http://www.copyright.gov/orphan/comments/OW0661-IllustratorsPartnership.pdf


Like Freelance Photographers, Freelance Illustrators have been bombarded in recent years with
rights-grabbing and/or W4H contracts when it was understood as honorable in the past
that a freelancers’ copyrights and rights to license were their hands-off “pension” so-to-speak,
in lieu of a yearly salary and benefits that a staff photographer/artist would have when they gave-up
or lost the rights to the works that they created while in the “line of duty” on their “comfy”
masthead w/ perks, and expense account jobs.


Then, greedy publishers like (ahem, you know, Conde Nast) tried to pressure copyrights away
from freelancers through W4H, unfair licensing contracts or the threat of not being rehired for
assignment if we didn’t play by their rules. Now that same greed has escalated to such an extent
that it has been fairly speculated that copyrights will have a good chance, some day in the not
too distant future,to be abolished and our intellectual property will be “harvested” and resold
back to us by say the likes of, Google.


You asked about your rights at the most perfect hour of your career, Paul.
In no other recent time can the quote “Knowledge is Power” be applied more meaningfully to
copyright protection and licensing. And we all as visual authors need to be vigilant.
If one doesn’t know, value and protect one’s own copyright, and that created work’s future
licensing potential, no one else in today’s world will do it for you. So by all means, as Nathan
rightly states “… charge s@!t loads of money for the pleasure [of selling them your copyrights]
cause you are missing out on all those licensing fees (and in many cases even the right to be credited.)”

Licensing is the reason why Bill Gates is a billionaire today. Gates recognized the income potential
of licensing and not selling the rights to his software at a time when no one else in the software
industry knew what an EULA was. That is also why publishers and corporations (and of course, Microsoft,
Getty, Corbis are included) want our copyrights so badly that most will financially support unfair
legislation like the Orphan Rights Legislation so that if they can’t beg, borrow, or steal our
copyrights through unfair freelance contracts (and if we allow them to) then they will fund and
find a way legally to “harvest” them away from us.


For more information on the recent U.S Orphan Rights Legislation see Sion’s recent “Act or Die” cell:

http://www.lightstalkers.org/us-orphan-works-legislation——act-or-die#latest

PS ( You will have to cut and paste the “act or die” link above, I think because the hyphens in the url
prevent it somehow from linking.)

This Orphan Works thing is such a scam ya know. It represents the mass transfer of copyright away from the people who create it, into the hands of corporate business.

Once information becomes ‘free’, they’ll use the portals they already own to sell it back to us – you can be damn sure those portals will be airtight when it comes to infringement of ‘their’ rights.

The Orphan Works thing is a get out clause from anyone who wants to steal any image on the web. All they have to do is say they tried to contact the author – and even if they failed to contact them, they only have to pay the repro fee they should have paid for the image in the first place.

So in the absense of a penalty for theft, the onus is continually on the author to track down and punish the thief.

Its blatant and widespread. Google for example, is digitising books without even asking for the authors consent.

Economically, it represents the commodification of information. While this may enthuse the William Gibson techno-geeks amongst you, (because the price of that information will fall or be free) what it means for the people who PRODUCE the information is the destruction of their raison d’etre.

Its old news. 200 years ago, if you wanted a chair, you went to the bloke in the village who made chairs. Then one day, some smart chap with a big pocket watch and bright ideas opened up a chair factory powered by that new-fangled steam engine thing. The man who made the chair starved, and his children had no choice but to go to the factory and use their chair making skills to produce chairs as commodities.

Now, before you all start condemning me as a Marxist Luddite, some amongst you will say thats the inevitable price of progress.

Fair enough.

But consider this example, an excerpt from The Nation:

“There may come a time when new media begin to produce a steady flow of quality reporting, but as of now, according to the latest report from the Project for Excellence in Journalism, while the number of media outlets is growing, fewer stories are being covered and in less depth.

“The worry is not the wondrous addition of citizen media, but the decline of full-time, professional monitoring of powerful institutions,” the report argues. As the Project’s director, Tom Rosenstiel, warns,

“The content has to come from somewhere, and as older news-gathering media decline, some of the strengths they offer in monitoring the powerful and verifying the facts may be weakening as well.”

So if information is ‘free’, then who pays the journalists to go out and find stuff out? Are hobbyist bloggers gonna dig around for weeks and maybe years finding out about financial and political corruption? How many amateur mobile phone images are ya gonna see from the next Darfur?

The report is telling, when we consider how US and UK newspapers managed to ignore the 300 lb gorilla of the Iraq War – which was that the WMD used to solely justify a pre-emptive invasion simply did not exist.

Few papers (with falling budgets as people migrate to the ‘free’,biased and unscrutinsied info on the Web) devoted any time to examining the facts which were staring them in the face.

However, that story was simply passed by, and over 100,000 civilians are now dead.

Sion:
I don’t consider you a Marxist Luddite. Although it does have a nice ring. Oh for the day that we photographers had more control over our work. I agree wholeheartedly with your take on the state of the newspaper model these days. I think it is seeing hard times but I don’t think it will fade away totally. To my way of thinking, the model works. I go to a newspaper or magazine for my news. I go to a blog for attitude. Does a market-based information gathering system guarantee truth and confidence? Not necessarily. But it sure as hell beats free or government controlled.
Oh, and to jump back a bit to the discussion about work-for-hire. If anyone wants to get a first hand account of what it is or how it works, just ask an acquiantance who works for the New York Times. The contract, which everyone who shoots for them has to sign, includes the following clause:
“You acknowledge that the Work has been commissioned by The Times as a contribution to a collective work and that The Time’s interest therein arises as a ‘work for hire’ under the Copyright Act. The Times hereby assigns you a joint copyright interest in and to the Work such that the worldwide copyright in all Works created pursuant to this aggreement shall be deemed joint works owned by the Times and you. In the event the Work is deemed not to be a ‘work for hire’, you hereby assign to The Times a joint copyright interest in and to the Work to effect joint copyright ownership.”
Such an arrogant, cavalier ballsy attitude. ‘The Times assigns you a joint copyright interest’. Since when does The Times have the right to assign anything? The copyright my friends is yours. Always was, always will be. Unless of course you work for the NYT and the copyright to the images you submitted is held jointly by you and them. I’m curious. How does that work when you want to register those images with joint copyright with the Library of Congress in the US? The form that I use, the Short Form VA, specifically says: “Use this form if— 1. You are the only author and copyright owner of this work, and 2. The work was NOT made for hire”
If it is ‘work for hire’ the Office requires you to use Form VA and advises " Under the law, the ‘author’ of a ‘work made for hire’ is generally the employer, not the employee. For any part of this work that was ‘made for hire’, check ‘yes’……." I think you get the idea.
First, this is not just directed to photographers living in the US. Those who reside any where in the world can use the copyright protection offered by the US Library of Congress. Second, the notion of joint copyright, while it does exist, for all purposes, diminishes your control to the image and hence your right to use it where you decide. Legally, if you are not the author of the image then you must get permission to re-use the image from the employer with whom you share the rights.
If you are still operating in the thrilling days of yesteryear, when a handshake and a phone call were enought to protect your image, I suggest you get up to speed with exactly what heinous concepts are embodied in ‘work for hire’ and ‘joint copyright’. Help yourself.
Keith Dannemiller

Sion, I don’t think that you are a Luddite, I don’t know, but I certainly have the strong urge to become
one with this Orphan Works Legislation ruining my plans to license my work through the internet market.
It is understandable why any artist or freelance small business owner will want to become a Luddite
through frustration when they learn that they are not only going to be denied equal marketing access to this
new technological frontier but any inventory that they already have had on it will soon be subject to a
corporate looting free-for-all similar to what we saw done in Iraq by U.S corporate war profiteers.

And, I agree with Keith, I definitely wouldn’t consider you a Marxist, because those are the types that
are being used to sell the perception of “free-culture” to the public. However, won’t they be surprised
when the reality of communism sets in and they discover that only the few party elite will be allowed to
control and participate in this new market because it certainly won’t be a free one anymore.


The “free culture” movement is using the idea of communism to Wal-Mart the freelance artists’
product and thus it will eliminate the small business owner just as you have exampled in your story of the
chair maker above. I personally think that the idea is the elimination of free enterprise and the birth
of a type of corporate communism being that in reality when communism sours
it typically benefits the haves and not the havenots. For the masses there is no free enterprise or
competitive market to participate in and therefore no opportunity to rise above your station, or as
you also have inferred by your Nation quote, no reason or incentive to build a better widget or will
or even competence to balance power through oversight. Either that or we could call it
capitalist imperialism, I guess.


Whatever it is, similar to the Nation article that you quote, the AMI (Association of Medical Illustrators) also
realizes the “defective and abberating” vision that the “Free Culture” movement will have on
the accuracy of detail that is called upon and required in the Medical field. Here is the press
release statement of March 13, 2006, with the headline, “Congress Endangering Medical Education”:
Sorry the link didn’t work, so here is the relating quote:


*QUOTE "In scientific and medical art, prevalent in science classrooms and doctor’s offices, accuracy
is everything. Under an amendment before Congress this week, however, that accuracy could be
compromised with the flick of a mouse if proponents have their way.

“A proposed “Orphan Works” amendment to the 1976 Copyright Act will jeopardize illustrators’
property rights and income in an effort by government to make their work freely available and
alterable for public and commercial use. Medical illustrators fear damaging consequences to
their careers if their work is subjected to inaccurate alterations by untrained users.

“On January 23, the U.S. Copyright Office proposed that Congress amend existing law to free up
copyrighted work whenever the creator can’t be identified or located. Current law protects an
author’s work upon execution without need for signatures, credit lines or copyright symbols.
Many published works by medical illustrators appear without credit lines or identifying information,
often removed by the client before publication. The explosion of unauthorized posting on the internet
has increased innumerable instances of unidentified work, through no fault or intent of the
original illustrator. The proposed amendment would declare all such unidentified works to be “orphan”
and freely available for use, alteration, or publication by others.


“Free Culture proponents say that current law prevents scholars and creators of “transformative” art
from using other artists’ work in making their own. They propose that all works published without
identifying information, or with that information removed, whether legally or not, should be designated
“orphans,” free for public and private use. Corporate interests are lining up to support this amendment,
and see this ability to acquire ‘free’ artwork that they could alter and use as desired as a boon to
their bottom line.


“Medical illustrators are highly trained specialists with education both in medicine and the arts.
Their work is extensively researched for scientific accuracy, and is included in virtually every
medical book and patient education program. This amendment would allow anyone, with or without
medical background, to distort the original intent and content of the images, thereby damaging the
credibility of medical education materials and the illustrators who created them.


“Medical illustrators strongly oppose the amendment. These illustrators see this proposed legislation
as an attempt by institutions and commercial interests to appropriate their work under the pretence of
serving the public interest. Medical illustrator Cynthia Turner compares it to last year’s
controversial Supreme Court decision regarding eminent domain. She stresses that existing copyright
law already affords scholars “fair use” of copyrighted material, and adds “this amendment is basically
a license to infringe.”


“Illustrator and Past President of the Association of Medical Illustrators, Marcia Hartsock, agrees:
“The work that I create is my intellectual property and constitutes a valuable inventory that I can
license any time, now or in the future, as part of my business plan and structure. I don’t understand
how Congress, in any stretch of the imagination, can say that, just because someone can’t find me,
they have the right to alter and use my work in a possibly inappropriate context to the detriment of
patient education, and earn money in the process.”


“The Association of Medical Illustrators represents over 600 medical illustrators who create original
images for health education in the United States, Canada and overseas. In 2005, the AMI joined the
Illustrators’ Partnership of America in asking the Copyright Office to maintain current copyright
protections that protect an illustrator’s rights to own and profit from their work. ……”
END QUOTE*

When amateur and professional contributions are equally valued, as you have said as much in your
response, multiplied by a non-incentive market to research and produce accurate information, the
results of this “free culture” universe has completely the opposite effect that a competitive, free
market has. Interestingly, the same resulting mediocrity runs rampant when human nature corrupts pure
communism, which it always does. One can already experience it at websites like the “Free Culture”
Wikipedia, whose anti-copyright followers revel in the concept that it is the “encyclopedia that
anyone can edit.” The Wikipedia Cult has spun a new just-as-mediocre and inaccurate site called
Wikilaw, and well, ahem, it is pretty obvious to see why Wikipedia cultists should not be practicing
law without a license. Mmmm, can’t wait til my surgeon starts consulting Wikidoc.


http://wiki-law.org/mwiki/index.php?title=Democracy_2.0:_Intellectual_Property#Copyright_Laws


I have no doubt that after the “Free Cultists” strangle the last free enterprise gasp out of the internet
that some type of corporate-corrupt communist Wonderland will not to be too far away. Then we can accurately
surmise, like Marx, that the Internet is now the true opiate of the People and watch while we all get Enroned
because of it.


I’m taking all my images off the internet and not putting anymore on, except at sites I know to be absolutely
reliable, until this corporate insanity, just like the Iraq war, is ethically oversighted and given back to someone
a little more responsible than Haliburton or Google. And as far as the resulting 100,000 civilians plus
others dead, well that goes far beyond obscene.

Now back to your regularly scheduled program.

One thing is for certain: there is no stopping them; the ants will soon be here. And I for one welcome our new insect overlords.

Oh, poor Kent. Did you nod off to sleep, because I’m afraid your pod is empty. )-:

Hopefully, they won’t survive the bird flu, or has anyone tried to pour water on them?
I heard that they are afraid of water.

Are photographers responsible for spreading bird flu to insects now? Shit, we’ll soon be wiping out whole eco-systems with contaminated bags and lenses.

Yes, you are and you are our last defense. Now do us all a favor and march back into those corporate boardrooms with your contaminated bags and lenses. (-:

The Chairman Committee Information Committee Rules Online Library Document Request



HOME > HEARINGS > APRIL 6, 2006

“Orphan Works: Proposals for a Legislative Solution”
Senate Judiciary Committee
Full Committee

---

DATE: April 6, 2006
TIME: 02:00 PM
ROOM: Senate Dirksen 226
OFFICIAL HEARING NOTICE / WITNESS LIST:

March 30, 2006

NOTICE OF SUBCOMMITTEE HEARING

The Senate Committee on the Judiciary Subcommittee on Intellectual
Property has scheduled a hearing on “Orphan Works: Proposals for a
Legislative Solution” for Thursday, April 6, 2006 at 2:00 p.m.
in Room 226 of the Senate Dirksen Office Building.

By order of the Chairman

Tentative Witness List
Hearing before the
Senate Judiciary Committee on
“Orphan Works: Proposals for a Legislative Solution”

Thursday, April 6, 2006 at 2:00 p.m.
Senate Dirksen Building, Room 226


PANEL I

1.) Jule L. Sigall
Associate Register for Policy & International Affairs
U.S. Copyright Office
Washington, DC


2.) Victor S. Perlman
Managing Director and General Counsel
American Society of Media Photographers, Inc.
Philadelphia, PA
http://www.asmp.org/pdfs/alternatives_senate.pdf


3.) June Cross
Documentary Filmmaker
Visiting Professor
Columbia University
New York, NY

4.) Brad Holland
Founding Board Member
Illustrators’ Partnership of America
Marshfield, MA

5.) Maria Pallante-Hyun
Associate General Counsel and Director of Licensing
The Solomon R. Guggenheim Foundation (GuggenheimMuseum)
New York, NY

6.) Thomas C. Rubin
Associate General Counsel
Microsoft Corporation
Redmond, VA

7.) Rick Prelinger
Board President
Internet Archive
San Francisco, CA


http://www.judiciary.senate.gov/hearing.cfm?id=1847

Victor S. Perlman
Managing Director and General Counsel
American Society of Media Photographers, Inc.
Philadelphia, PA
http://www.asmp.org/pdfs/alternatives_senate.pdf

U.S. Senate Orphan Rights Legislation Witness testimony now available:

http://www.judiciary.senate.gov/hearing.cfm?id=1847

This old thread has a mixture of information on the copyright of your photos.

Since I joined Lightstalkers in April 2006, I don’t remember reading this thread, but I do remember hearing about the Orphan Works legistlation.

An important and great thread.

Hadn’t seen this thread before, either. Just mentioned this over on the APhotoADay blog.