Question: When is it okay for me to publish (or otherwise use) an orphan image?
Answer: Never* (notice the asterisk)
We all know that copyright is there to protect creative works from being used without the permission of the rights holder. That’s good, that’s solid, we can all appreciate the message. Licensing an image for use, therefore, is fairly straightforward as you need only find the image, contact the rights holder and obtain the permission you seek.
When it comes to using images whose owner is unknown (in the vernacular, an orphan image), publishers and other image users are fearful to use the image, as the rightful owner may come forward and, well, sue their pants off.
There have always been issues with images becoming disassociated from their owner, and thus “orphaned”. In the early days, film images would be paper mounted, sealed in a plastic envelope or some other protection that carried the owner’s name, contact information and © legend. The Internet has caused an explosion of images to become effectively orphaned as files become stripped of metadata (if they ever had metadata), file names are changed by users to accommodate their work flow, or any of a number of other reasons. While removing that “copyright management information” (in whatever form) from images is prohibited under the Digital Millennium Copyright Act, it remains the case that images that have been carefully identified by the image owner are routinely stripped of their identity to become orphans in a sea of images. Equally as horrible, image users locate images they really want to use, but can’t find the path to licensing the images. The image owner can’t license their image, the image user can’t license the use of the image AND the general public can’t benefit from exposure to the image. Everyone loses.
The Orphan Works Act of 2008 (HR 5889) has the intent of leveling the playing field by allowing image users to use orphaned images without the threat of huge punitive damages. Unfortunately, to date, the bill has not offered the image rights holder a reasonable path to reassert their copyright in the orphaned image. In fact, as of the last incarnation of the bill, the image owner would have to jump through costly legal hoops to take the image infringement to court, prevail over the infringer’s objection that a “good faith” search for the author was made, and then go through a process to reclaim their orphaned image as their own. Not so good. Adding insult to injury, once an orphan publishes, every other image user is able to extend less effort finding the owner. Instead, they can point to the first orphan use as an indication that due diligence had been done by other(s) and the owner could not be found.
The Orphan Bill as we know it is in the House Judiciary Committee and it is hard to know when it might emerge or in what form.
The idea of creating a fair and reasonable Orphan Bill is, in many respects, a wonderful idea as it would allow millions of images that are disassociated from their owners to be used. But what is fair and reasonable?
I would suggest that fair and reasonable would allow a ‘user’ to publish a work after doing due diligence to find the rightful owner. I can’t define ‘due diligence’ in this short piece so please allow me to move forward simply saying ‘due diligence’. The user should be able to move forward without fear of unreasonable punitive damages should the rightful owner come forward. That’s a sticking point. What if the rightful owner would not have allowed the use of the image due to a social or personal belief? What if the image owner were opposed to a political use or having their image promoting a social issue such as abortion, birth control, drugs, alcohol or sexual orientation? Image rights holders control the copyright to their image and that means they control how it is used. Unless of course, the image is ‘declared’ orphaned. Maybe you see a solution to the ‘opposed’ issue, I don’t. Having documented this issue for your consideration, allow me to leave that conundrum on the table and move on.
Let’s tackle the use of an orphan image where the image owner would have been happy to license the image for the use that was made. The image owner is first straddled with the responsibility of discovering the ‘use’ and then seeking a fair settlement. I don’t see a way around that. I do see the opportunity for something like the Orphan Bill to set a process by where a fair price is set for the use and the image owner has a clear and easy path to reestablishing their copyright in the image. A fair price for the use would vary by several factors. The use itself, one might look at a selection of stock agencies and what they would charge for the use itself as well as the industry status of the image creator, I find it easy to understand how an image created by a top dollar industry pro would be valued higher then an image created by someone just starting out. I can also see a penalty charged to the user if the rights owner can document clearly that the use violates a personal or philosophical belief. This would encourage those who have a ‘controversial’ use to look further for an image that they are able to clear the necessary rights. Let’s leave the comparison there. There needs to be an opportunity for the unique circumstances of the specific use, and the status of the creator, to be considered in the fair assessment of a retroactive licensing fee and that likely will need to be arbitrated by qualified people. If arbitration were made the legal solution it’s possible all parties would find themselves a bit ‘unhappy’ but dealing with a reasonable outcome. For the moment, I’d vote for arbitration.
In my opinion, the image user really needs to consider the backend liability and measure that against the value of the image they wish to use. This step, in of itself, will cause many users to find substitute images for some orphans while moving forward using others. As it stands now, image users are liable for damages when they use an image that has not been properly licensed. That’s the reason why the Orphan Bill was first introduced, to protect users from huge punitive damage settlements. The holdup in passing the Bill, so far, and only as the result of massive objections from the copyright holder’s side, is that it does not offer a level playing field for users and copyright owners to come to settlement, fairly.
As we move forward image creators and/or copyright holders will need to do more to protect their creative property. There are solutions currently in our midst and others under development. Here are a few worth looking into:
Digital watermarking is a process by which a unique identifier is embedded within an image, not the metadata, and can’t be removed. Services, like Digimarc (digimarc.com), are available that allow images, that have been digitally watermarked, to be found by bots that tirelessly search the Internet. Reports come to the image owner and any image found may be checked against licenses that have been made. Obversely, an image may be checked to see if it contains an imbedded identifier that will lead it ‘home’. This may one day soon become a part of a users routine due diligence.
Image recognition has come a long way. Tin Eye (tineye.com) is one company that provides image recognition software that one uploads an image to. The image is then searched for across the Internet. If the image is found the URL locations of any use are reported may provide a link back to the rights holder. This is another way users may do a portion of their due diligence in trying to locate a rights holder.
Image registries will be hugely valuable resources as rights holders are able to register their images as they are created and also retroactively. Case in point, PLUS Registry (useplus.org), years in development will soon be a global online resource connecting registries worldwide, images, rights holders and rights information. PLUS is something to know about and I believe it’s in our near future. It is well worth your time, as a user or a rights holder, to stop by useplus.org and check it out.
*So, the original question was, When is it okay to publish (or otherwise use) an orphan image?
Knowing now some of the issues surrounding the use of an orphan image I’m revising my answer to be, never… or when your company counsel says it’s okay.
Doug Brooks has extensive experience in the field of picture research and licensing, including his leadership of an intrepid group of acquisitions editors at one of the largest general interest book publishers in the United States. Today, he is a co-founder and co-director at the Image Research Team providing image and video services to publishers and museum exhibition developers. As a photographer, he continues to shoot for the stock market and he serves as an officer on the National Board of Directors of the American Society of Picture Professionals (aspp.com). He may be found at The Image Research Team and LinkedIn.