Orphan Works = Finders Keepers?

I try to keep this blog about photography and technique, but if you’re a photographer, writer, painter, or producer of any kind, you need to be aware of some legislation that is kicking around in Washington, DC.

It’s called orphan works and it could have a major impact on your business.

In the United States, every time you press the camera’s shutter you own the copyright to that image (unless you’ve signed a contract in advance stating otherwise). Many people who create intellectual property — including yours truly — make a living by licensing the use of their work to others. I make sure that my clients have all the usage they need, but I usually keep the right to license my photos in the future.

For example, I shot this photo in 2003 of fans celebrating at the Ohio State-Michigan football game for Sports Illustrated.

Since then, the image has been licensed through my agency Corbis numerous times including a lucrative Fossil watch ad.

The copyright to my photographs is my property. It’s up to me to decide if and when I want to license it for commercial or editorial use. There may be times when I don’t want my images used in a particular way. For instance, I don’t allow my celebrity images to be used in tabloid publications. I also can negotiate a license with a client whereby the images from a shoot can’t be licensed by another company in the same industry for a certain amount of time.

Orphan works refers to work where the copyright holder can’t be found. The proposed legislation basically says that if the owner can’t be identified, then the work can be used without penalty. If the copyright owner comes forward later, the infringing party simply has to pay the going rate for the license and can continue to publish the photo.

The orphan works legislation is essentially saying, “Finders, keepers.”

It’s akin to finding a vacant lot and building my house there because I don’t know who owns the property. To stay with the analogy, if the land owner comes forward after I’ve already built the house, I simply have to pay him whatever the going rate would have been on the property. It doesn’t matter if the land wasn’t for sale or if the owner had already promised it to someone else. I would not face any fines or go to jail for stealing the property.

In the real world, if I want land for my house, I have to find property that’s for sale and buy it. The act of licensing photos is the same.

Seems pretty straightforward to me.

Last week during the World Copyright Summit, Sen. Orin Hatch (R-UT) said that he was actively pursuing the passing of orphan works legislation and may re-introduce the bill in the coming weeks. You can read more of his comments on John Harrington’s photo business blog.

Please let your Congressional representatives know that you oppose orphan works legislation.

Whether this bill passes or not, you should do everything possible to make sure that your images can be identified as your own. This includes embedding a copyright notice on the photo (as I did on the image above) and also making sure that your files have metadata stored in them with at least your name and contact information.

These steps aren’t difficult to implement into your workflow and will help to protect your rights for many years to come.

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