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Thursday, March 02, 2006

Poor Little Orphan Work

Lewis Morley (b. 1925), Christine Keeler, 1963

Recently I attended a lecture by Lewis Morley, which coincided with an exhibition of British Art of the '60s. Lewis is best known for his photograph of Christine Keeler, which he says is the third most ripped-off photo in the world (after the standard Mao Tes-Tung portrait and Korda's Che Guevara). He showed a large number of variations, some made with permission, most without.

One of those was by Matt Groening and featured Homer Simpson on the chair. This was done without permission because they were "unable to find the copyright holder." They went ahead regardless and it all got settled amicably later.

Imagine being the production company assistant who has to track down the copyright holder. How do you search on the 'net for an image if you don't know the details? Chances are they weren't even born when the shot was taken, have never heard the story, and even if they had a copy in front of them wouldn't have a clue who the subject was.

If they can't find the copyright holder for one of the most famous photos in the world, what protection would your work have? And if someone really wants to use an image, how hard do you think they will try to find the copyright holder?

OK, your photo gets used and you get paid "a reasonable amount." But what if it wasn't for something innocuous like the Simpsons? How may products would you like your work associated with? Political advertising? Taken out of context to misrepresent actual events? Loss of control is as much an issue as loss of revenue.

Posted by: PAUL EWINS


Anonymous Anonymous said...

How can Morley, or anyone, copyright a pose? How many time have you seen someone sit backwards on a chair"?

4:42 PM  
Blogger Mike Johnston said...

Well, you CAN'T copyright a pose, but you're not missing the point, are you? The point is that Groening knew what he was lampooning when he drew it, tried to contact the photographer, and failed...despite the fact the Groening is a zillionaire and the Keeler picture is one of the most well-known photographs in the world.

AND, that being the case, what chance to you and I have of being found by "due diligence" before someone snitches our work and uses it without permission, perhaps for purposes we don't approve of?

It's merely a concrete example of how unrealistic the "due diligence" clause of the orphan law is, and how prone to abuse it will be.


6:50 PM  
Anonymous Anonymous said...

If the shot is picture is so old that "they weren't even born when the shot was taken", it probably does not deserve to have a copyright restriction. IMO, a period of about 10-20 years is way longer than what would give the artist/inventor/developer of enough time to cash on it.

Also, I see absolutely no reason for Groening to even try finding the original copyright holder just because he is using the same pose in a cartoon. Almost sounds ridiculous!

All this coming from a student who is nowhere nowhere close to what you'd call a "pro".

By the way, do you really get permissions from the copyright holder for reproducing all these pictures in your blog?

7:06 PM  
Blogger Mike Johnston said...

No, the pictures we use here would be covered under Fair Use. However before I use a big picture for decoration, or before I use a picture that comes from a personal website, I will ask the owner if it's okay. There have been a number of cases where I would have liked to use a picture, but it is clearly marked protectively ("May not be used without permission" for instance) so we merely link to it, or, more usually, just pick something else.

It would be interesting to find out whether Groening & co. actually paid anything or not. Probably not. The only reason they'd be checking is that the picture was the cover of a video, meaning it was clearly intended as commercial advertisement for the video. That's the situation where you get in the most trouble if you step on somebody's copyright. In some cases, very famous visual entities are also trademarked. For instance, the famous "Lone Pine" at Cypress Point Golf Club is trademarked, and can't legally be photographed--by anyone--without permission.

Here's a link to a good article on Fair Use:


7:50 PM  
Anonymous Anonymous said...

Wait a minute.... please. For all its fame , I've never laid eyes on this image, (or don't remember doing so) and I taught and collected fine art photography for many years. How this could be construed as infringement with or without knowledge of the "original" is way beyond me.

9:19 PM  
Anonymous Anonymous said...

A agree with anonymous above - I have never heard of the image, and I find it reprehensible that anything less than an actual _copy_ (as in photocopy, or scan-and-print) of the image could even be considered as being within copyright.

The current length of copyright is also far beyond the pale - what is it now? Death of the originator plus fifty years? Seventy years? It seems, whatever keeps Mickey Mouse within protection. Actual, real, patents are content with twenty years.

And fair use sounds good - until you realize fair use is being challenged, and stopped (using the DMCA, shrinkwrap licenses) even in cases where it wouyld very clearly be allowable.

As long as copyright is so overreaching in so many ways, I find anything that weakens it - yes, especially "orphan works" - necessary. You don't like it? Then argue for a sane copyright measure that is not tilted so very far in favour of the holders over anybody else.

Especially those of us that do depend on copyright in our work should be very, very worried about this overextension. It erodes the legitimacy of the whole system (and legitimacy, not draconian laws, is what makes people respect copyright), and can, if this continues, in the extreme result in its collapse.

1:04 AM  
Anonymous Anonymous said...

The image in question is probably better known in the UK - as the subject was the centre of a politcal sex scandal there in the 1960s.

FWIW - I simply cannot see why anyone would have to seek permission to use a pose (in cartoon no less). Does this mean that for every pose I shoot in a studio I need to seek permission from all those who have shot it before, or only those which are "famous"? If the latter is the case it kinda undermines what is being said about protection for all.

On the other hand, direct reproduction of work should be protected, heavily. By reproduction I mean exact copies of the original, but if someone wants to go ahead and create from scratch a drawing, or photos with a similar pose (even of the same person) where's the wrong in that?

2:07 AM  
Anonymous Anonymous said...

I have to agree with all those who see the absurdity of this issue. Sitting on a backward chair is copyright-able? Whats going to happen to all those pictures of Half-Dome?

5:35 AM  
Anonymous Hoffel said...

You people are really missing the point. It's not about Groening needing the permission, it's that his people were indeed trying to find the original copyright holder and were not able to. Now, with the photographer and the model being famous (in the UK, I must admit that while I know the picture, I had no idea who the model or the photographer were) and not traceable, how would anyone be able to trace your work back to you? He wouldn't. And therefore could use it in any context, be it for advertising/profit or for (unlegitimate) propaganda that you would never tolerate. That would bring you (and even more importantly the model/client, unknowingly in context with something you would never endorse.

How does that sound?

7:30 AM  
Blogger Dave New said...

If Groening & Co. were looking for the *copyright* holder of the original work, they were completely off the mark in the first place. They perhaps might have been better engaged in looking for a *trademark* registration, instead. Otherwise, a cartoon re-interpretation doesn't even come close to being covered by copyright law, unless someone wishes to stretch the interpretaion of 'derivative work' to cover the obvious lampooning. In any event, works of satire have been upheld as allowable use in court. Witness the success of Wierd Al Yankovic -- he reuses the tunes, but changes the lyrics to satire, and has successfully defended that usage in court.

I'd like to point out again the Lawrence Lessig book, Code and Other Laws of Cyberspace. This book covers all these various aspects (and much more) within the context of how society needs to adjust to the realities of the modern-day Internet, and where the courts may obtain Constitutional guidance.

Lessig is well-respected in the intellectual property community, and has argued such cases before the Supreme Court. Highly recommended reading.

8:49 AM  
Anonymous Anonymous said...

Like others, I think it is crazy to think that anyone would even link the Homer image to the supposed "original" in this case. I also understand that the point of the blog entry is that it can be very hard to track down the owner of a picture.

The day may come, even in the near future, where you can scan the picture and find the original entered on the web.

At that point, the "orphaned law" would make sense. If you want to use a picture, you would have to scan it and have it compared to an online database kept by a search company. Thus, to protect your work, you would only need to "register" the image with the search engine and include an email address. A database could be kept of when photos were registered, and if a photo were misused due to a "poor scan quality," damages could be awarded to the photographer for copyright violation.

The technology exists to do this now. Congress simply needs to mandate it as an inclusion in their law, and provide a reasonable period of time (say 24 months) for photo registration by copyright owners before the "orphaned work" part would come into effect.

10:51 AM  
Anonymous nanuk said...

Common Michael,as a fashion photographer I´ve shot a thousand images of a model sitting so in a chair and this is the first time in my life I see this image. It´s like saying I shot b&w first and no one else can afterwards. That's taking it too far. Korda's image of El Che is not a point here because that very same image has been exploited in thousands of ways without the photographer being acknowledged any royalties. And by the way I thought Korda's image was the most published image in history.

2:18 PM  
Anonymous Anonymous said...

Maybe I am mistaken, but I read that Korda deliberately did not persue any copyright issues with his image of Che. He wanted it to be public domain.

Getting off the point I know.

As for the Homer image - I guess it is a good example of how difficult it can be to track down an original artist - but maybe a poor example in so much as possibly he shouldn't have bothered?

2:58 AM  
Anonymous Paul Kierstead said...

Well, the couldn't find the copyright holder because the DIDN'T HAVE THE IMAGE. No wonder they couldn't find it. What would they search for? Now if they had the actual image (in one form or another) and wanted to actually reproduce it (not just be inspired by it), I expect it would have been an awful lot easier to do.

You harp on the "everyone is trying to rip off the photographer" angle, but y'know, I think it is sad that a huge amount of the copyrighted work is going to disappear for many many many decades because of copyright laws which extend for far too long. Instead of railing at the companies which are trying to rip us off by stealing our works, try taking aim at the companies which are trying to steal our cultural and artistic heritage by making most middle aged works unreproducable because the artist died and didn't leave a corporation in charge of his assests.

This is about off-setting some serious stupidity in copyright laws (all more recent actions in fact); it might not be the right solution, and maybe needs some adjustment, but characterizing it is 100% evil does a disservice.

9:33 AM  
Blogger maiken said...

Paul wrote:

[Morley] showed a large number of variations [on his photo], some made with permission, most without.

To be blunt, no permission is needed. I realize this is not the central point of the post, but it's a pretty egregious overreach to claim that anyone who photographs a model in this pose needs some kind of permission from Morley.

12:23 PM  

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