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Friday, March 03, 2006

I Do Not Hate Kitties

I fear that the point of the post "Poor Little Orphan Work" has gotten derailed. It's not whether photographer Morley deserves protection from cartoonist Groening. Surely not, by any reasonable standard. The commenters who said so are right about that. (As one commenter pointed out, Groening is probably ripped off far more than any photographer.)

The point is that the orphan law requires the prospective user to make a diligent and reasonable effort to find the copyright owner before using a photograph. And here we have a case of one such user who has essentially limitless resources, attempting to identify and contact the owner of a very well-known and widely disseminated photograph (and it is, even if you may not have seen it before!).

And couldn't manage it.

That's the point. So, given that fact, what chance do much littler guys have? Let's say someone takes one of my photographs from one of my "Saturday Morning Photographer" columns and sends it to some of her friends. It diffuses out from there to drift as flotsam on the endless virtual sea of the web. A graphic artist finds it one day and thinks, "hmm, here's a nice 'anonymous' picture, I believe I'll use it as a book cover for a client." The book cover with my picture on it happens to be for a book advocating the killing of kittens by torture (or something). Because of its controversiality, the book sells well and makes a lot of money.

Meanwhile, I've put my photograph in a book myself, and it's proving popular too (hey, anything's possible). I sell $800 worth of prints of that picture every year, and since I'm a starving artist, that's meaningful to me. But I'm noticing something very strange. As I travel around to book signings, I notice an increasing number of people in the back holding large placards saying things like "KITTEN KILLER!" "BOYCOTT JOHNSTON, HE'S A MEANIE!" "KITTY HATER!" and so forth. Cat magazines spread the word; I'm vilified at cat shows. Novelty cat litter is sold with a caricature of my face on it. Not only does the bad reputation dog me (ooh, punny!), but my sales of that print drop off to nothing.

Eventually I sort out what happened. I hire a lawyer, who sends out a cease-and-desist order to the pro-kitten-torture people and demands compensation.

Under the old law, I can a) get them to stop using my stolen picture, b) get payment based on some independent, negotiated evaluation of the picture's worth to them based on their usage of it and what they earned from it, c) get compensation as well for my damaged reputation and documented lost print sales, d) get them to pay for my lawyer if I win the case.

Under the new law, they can say, "Right, sorry. Here's $500. It's what we pay for all our covers." They go on using my picture and damaging my reputation, I'm out the income from my print sales, and I have to pay for the lawyer.

Please note that the above is just a "hypothetical scenario for purposes of illustration." In other words, please don't start telling people that I hate kitties. (I love kitties.)

Posted by MIKE JOHNSTON

12 Comments:

Anonymous Jock Murphy said...

I do not necessarily agree with your dislike of this law as you, but I do understand where you are coming from. However even if I did disagree with this implementation of the orphan works law, I would still want to see some form of it created.

We have lost the core meaning of copyright, it is a compromise between the needs of society and the needs of the artist. So we say that the artist can control the use of his or her work for a limited time in exchange for the work being free to all when that time is over.

In my lifetime I have seen the term of copyrights extended three times (and patents once). It is very likely that we will see them extended again. This is in effect creating a near perpetual copyright, mostly for the interests of certain special interests (Disney being one but far from the only example).

As such there are number of works out there for which the copyright owner simply cannot be found. Should these works live in (possibly) perpetual limbo? Ultimately it will be for the courts to decide what a reasonable amount of effort will be to find the copyright owner. The reality is that most laws are never as bad as we fear they are.

5:33 PM  
Anonymous dmk said...

Your point is moot in two ways: First, as someone already commented, it's impossible to copyright a pose -and anyone sitting backwards on a chair will approximate that pose. Second, Groening's cartoon, at most REFERS to morley's shot, he does not actually use it. This kind of use is even more removed from the original than "fair use" quotation of a bit of text. And although this is arguable, I don't think this is even closeto being as famous a shot as you claim. how many people outside the UK could be expected to remember the Profumo affair and ms Keeler. this is not the "Walk to Paradise Garden" or Che Guevara, it's a tabloid trollop, of which there is always a constant supply.

6:18 PM  
Blogger expiring_frog said...

@dmk: To flog a dead horse for the nth time -- the point is not whether the cartoon infringes on copyright (as everyone agrees, it doesn't). The thing is, for whatever reason, a thorough search by a very capable individual for the creator of a picture resulted in failure. Now imagine an actual copyright case involving you or me -- if Groening couldn't find Morley (although he knew, btw, what the original picture looked like), what chance would any of us have of finding the copyright holder of a nondescript picture?

9:34 PM  
Blogger scotth said...

It'd have to be a pretty small book, assuming the photo you posted online was sized at 72 dpi, for the photo to make a decent cover. There should be a signature in the corner somewhere too, a lack of copyright notice would affect the damages even if the law were not changed.

I think it's ineveitable that if you post photos on the web, someone is going to take them.

9:37 PM  
Anonymous John said...

I think it's ineveitable that if you post photos on the web, someone is going to take them.

So someone buys a print, scans it, sends it to a friend because it's such a beautiful photograph. Same problem arises: no signature on the photograph, (potentially) higher resolution image.

Your argument sounds like a bad defense of music theft. "If they didn't want me to send it to all my friends, they shouldn't have allowed me to rip it."

This law rewards bad behavior. Why not limit the legitimate use of orphaned work to a very constrained set of uses, such as public institutions for purely non-commercial work?

It's still open to abuse, but at least the collateral damage is alleviated to some degree.

11:13 PM  
Anonymous Anonymous said...

This is a good case for digital copyrights embeded in the image, I do historical research and publish a few books, I am researching a photo right now that is labeled "June 41, near Minneapolis" it's a snapshot of a train that came from a collection of a man who bought and traded train pictures for 70+ years, no photograhers name, just the date. It would be great if they all had a paragraph on the back, but usually you are lucky if there is a date.

-Hudson

8:49 AM  
Anonymous Anonymous said...

"This law rewards bad behavior. Why not limit the legitimate use of orphaned work to a very constrained set of uses, such as public institutions for purely non-commercial work?"


From the entry on Angelo Rizzuto 2005-12-01

"No one saw these images while Mr. Rizzuto lived. When he was dying of cancer in 1967, he asked that his photographs—some 60,000 of them—be sent to the Library of Congress, along with $50,000 from his estate to finance a book of his work. The library printed a cheap, staple-bound booklet, then used the bulk of Mr. Rizzuto's money to acquire the work of more famous photographers like Diane Arbus.

This is why I don't trust public instutitions to "do the right time"

When I hear stories like a above I start thinking about having it all burned when I die.

-Hudson

9:39 AM  
Anonymous Paul Kierstead said...

To support your proposition you need to verify that they had the actual image in question, and weren't just searching for "that photograph which had a nude woman in a chair backwards". If the latter then it is reasonable that they could not find it, and nor should they have to. If they had the original image, and the image is as famous as you say, then clearly they did not make much effort and your example is moot.

I'd bet is more more like this:
Artist to Laywer: "We are making fun of a famous image. Should we contact them?"
Lawyer: "What famous image? Who did it?"
Artist does a quick google: "Not sure."
Lawyer: "Well, it is a permissible use anyway, screw it, use it anyway if they don't like it they can contact us".

How about: You find a wonderful small press book of photographs produced in the 40's which you think is highly artistically and socially relevant (lets say Japanese internment camp pictures). The publisher is long out of business and the photographer disappeared and cannot be found despite your looking. Should it be silently discarded? Or should there be some recourse?

9:44 AM  
Anonymous David Ramos said...

Quoting Paul Kierstead:

that photograph which had a nude woman in a chair backwards

Actually, a Google search for these terms returns a page about the Morley-Keeler image as its third result.

The scope of the orphan-works problem would diminish if copyright expired after some sane amount of time; surely, if a work retains value after 20-30 years, it is important enough that the rest of society should be guaranteed access.

And it seems to me that that the case of an historian seeking to use anonymous images from the 1940s already teeters on the edge of fair use. Perhaps a law explicitly allowing the free reproduction of a work for the purpose of citation, not just criticism, would protect historians.

10:07 AM  
Anonymous Anonymous said...

ARRRRRRRRGGGGHHHHHHH!
Nobody gets it.

Copyright law protects the creator (copyright owner) and society simultaneously.
Intellectual property is something that can be very valuable and is also very easy to steal. Therefore we need strong enforceable laws against stealing it. If society doesn’t foster the creation and protection of intellectual property (including patents), the motivation for the creation of these valuable assets dries up, and all of society suffers because of it.
The orphan works law ridicules civil society by encouraging the theft of intellectual property and providing no disincentive or punishment for thievery!

Any picture can easily be separated from its copyright information - accidentally or deliberately.
As soon as that is done, it can then be declared an "Orphan Work" (under the proposed copyright legislation amendment) as the owner is then impossible to identify (if you can't identify the owner, it doesn't matter if the owner is locatable).
Once the picture is declared an Orphan Work, the thief has no motive to find or contact the creator/owner because the penalty for not so doing is minimal and almost impossible to enforce. From a pure business and odds point of view, it would never make sense for any user of any visual work to try to find and pay the copyright owner before hand. It would always make the most sense for the user/thief to use the visual work without payment or permission, and know that there would be no significant penalty if the copyright owner ever found out.

If confidential sources are not protected, then those confidential sources dry up and disappear.

If patents are not protected, then drug companies have no incentive to create some of the wonderful miracle drugs that improve our quality of life. If you don't like the drugs or think they are too expensive, then don't but them. But if you don't protect them in the first place then you steal them from everyone and give no one the opportunity to benefit from them.

If you find a great visual work and want to use it to create a product or illustrate the point, pay the copyright owner. If you think it is too expensive, go find something else. If nothing else does the job as well, then the work obviously has intrinsic value -- value put there by the creator.

NO WAY are we depriving society with strict copyright laws! On the contrary, by strict copyright laws we are ensuring a constant flow of creation of valuable intellectual property.

A builder who takes a month to build a building should get paid. The building can't very easily be stolen by a simple click-n-drag on your computer. But wouldn't society "benefit" if it could steal that building?
A software developer, or musician, or artist who takes a month to create an intellectual work SHOULDN'T GET PAID??? -- because the work that they create is easy to steal by a simple click-n-drag (and society can "benefit" by stealing it)?

Why did the USSR fail as a society and economy, while the USA thrives? Because individual effort is rewarded here. Our form of society provides incentive and motivation. Perfect? No. Just better than everything else.

'nuff said
Think about the big picture.
Drive beyond the hood ornament.

-Dave Sucsy

12:26 PM  
Blogger scotth said...

Your argument sounds like a bad defense of music theft. "If they didn't want me to send it to all my friends, they shouldn't have allowed me to rip it."

I didn't say it was right or wrong, I just said that is how it is.

1:53 PM  
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7:37 PM  

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