Monday, 29 March 2010

Orphan Works - the Fall Guy, the Politician and the Photographer - Part 3 - The Photographer

Brian - the photographer

Somewhere in this story there is a real photographer. It would be nice to find him or her.

I've done a slightly more intelligent search on Getty Images editorial collection on Mandelson - 2437 results - Mandelson moustache - 0 results! Everything in colour and running five pages from the back and five from the front not a moustache anywhere to be seen. I tried Alamy - only 121 results - again no moustache.

Now that's not a diligent search. There is a real photographer out there but I'm going to have to create a fictional photographer and I'm going to call him Brian. And he's an American. Brian had for 5 years lived in the UK during the eighties and that was when he took Mandelson's photo. He was now represented by a large US based agency.

In 2012 Brian had been worried about the erosion of his income for years. He sensed that hundreds of his images were out there on the internet being used by people in many ways but there was no way to put a number on this and with billions of images on the internet and with rarely any 'metadata' telling search engines what they were about he know that searching was folly. When people copied and used his images they either purposely or accidentally stripped out this metadata.

Brian fully understood the economics for the casual image thief. He sensed that rather less than one in ten of all images stolen would come to the attention of the photographer. He knew that if pursued in the UK then the legal system worked in a way such that he only was able to recover the market value of that image after huge efforts in court. And the thieves always started from the viewpoint that such images were available for $1 on the 'micro' sites.

Brian reckoned that for the casual image thief with 10 images on a website, the off chance of one day having to pay market value for one image was a bargain. Orphan Works legislation had for him made no difference to this because like everything else it failed to place a proper value on his images (all were non-generic one offs) or his time. It failed to recognise that the statistics were stacked up against the photographer both in terms of a 'diligent' searcher's chances of finding him and his own chances of ever knowing that one of his images had been used as an orphan.

Under normal circumstances Brian would have no means to know that his image of Mandelson had been used without spending vast amounts of time on speculative searches - including the UK's Orphan Works Register. And if after all this time spent searching he found an orphan that was his then he had to go through a bureaucratic process to recover a fee. And because of the IPO's take on market value, the fee he received did not even properly allow Brian to recover the time costs of the form filling.

All he knew was that the UK government could take his intellectual property and sell it for a fee, taking the income which was rightfully his. The Orphan Works mechanism gave him no return for the time spent speculatively searching the register or even the real value of his image. And why should he have to think about all this anyway - it's another country!

Brian wondered how anyone could imagine that the Orphan Works legislation could help photographers even in the UK. Prior to the legislation the honest photo buyer would have at least have purchased a second best image from a library. Dishonest image users would not be influenced one iota and carry on as they always have, time spent in 'diligent' searching to be followed by a fee would hardly appeal to an image thief.

Brian understood the economics and statistics. It seemed evident to him that the whole pool of funds from the use of orphan images should be allocated fully to people who were able to claim copyright. But the reality was that the costs of the new bureaucracy would mean that the pool would be tiny.

The image was registered as copyright with the US copyright office. He and his agency would never have known about the use of Lord Mandelson's image had the story not gone viral. Brian occasionally discovered unauthorised uses of his images. And knowing that so few would be detected he followed up abuses vigorously using the strength of the US system.

A joint action was launched by Brian and his Agency to obtain compensation and statutory damages for the abuse of his copyright image. In the US such statutory damages could be $50,000 or more.....

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This is fictional. The lessons are real.

> The Fall Guy
> The Politician

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