Tuesday, 30 March 2010

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Lessons from "The Fall Guy, the Politician and the Photographer"

Because most people don't have time to read through the 3 longish blogs that follow about the Orphan Works legislation in the UK's proposed Digital Economy Bill....

The Fall Guy - the end user of an image who somewhat innocently finds himself in hot water.

LESSON: Any so called Orphan is someone's copyright and most of those copyright holders will be overseas. There's every chance these copyright holders will want to disregard UK legislation that misappropriates what is theirs and act against innocent UK users of their images.

The Politician - the subject of an image who finds his orphan image being used in a way that would be embarrassing or hurtful to him

LESSON 1: Any image containing recognisable people or property should be absolutely excluded from being able to be used commercially as an orphan. Better still, all commercial use should be excluded. To be really safe, all use. Exclude photography from this legislation.

LESSON 2: Never rush through legislation, particularly when those rushing it through seem glibly unaware of the ramifications

The Photographer - the professional creator of many marvellous images who is in the digital age is taken for granted

LESSON 1: The UK legal system is already weighted against photographers getting fair compensation for the abuse of their intellectual property. Many dishonest people know that it pays to pilfer images.

LESSON 2: The Orphan Works proposals would make it totally time inefficient for a photographer to seek out compensation for Orphans used. If ever enacted, compensation should be at a multiple of the market rate to reflect that while many Orphan's will generate income for the government, few payments will have to be made to photographers.


What's interesting about this story is that everyone in a different way is a loser. Except the government. And time is never valued - except that of the lawyers.

Monday, 29 March 2010

Orphan Works - the Fall Guy, the Politician and the Photographer - Part 1

Derek - The Fall Guy

Once upon a time the Times Online ran a piece on political makeovers which linked to a larger version - this image.

The larger image was 'borrowed' in 2004 by Terry who found it is a search on Google Images. Terry operated a local men's grooming website in the USA - he had no interest in who the guy in the photo was.

The guy in the photo was none other than Peter Mandelson (Official title The Rt Hon Lord Mandelson, First Secretary of State, Secretary of State for Business, Innovation and Skills and Lord President of the Council) now (in 2010) sitting in the UK government's cabinet, a well know figure in the UK but not abroad. Terry also had no idea that Mandelson was one of the new breed of gay politicians who no longer hid details of his private life.

Flash forward to 2012..........

Derek, a 23 year old fashion graduate setting up his own business was desperate for an image for his website. Short of funds he could not afford to hire a model and photographer. He spent a couple of hours looking through the dollar an image 'microstock' stock websites searching on "handsome man moustache" and he saw no image that was right for him. He switched to Google Images and stumbled across Mandelson's photo that had been picked up by Google on Terry's website.


Derek wasn't interested in politics - he had a vague idea what Gordon Brown looked like & that Brown had surprisingly won the 2010 election but that was about it. He had been reading some designers' discussion boards on the web and some people there who were complaining about having to pay to use photos had heard of something called "Orphan Works".

He had read that Orphan Works was the new cheap way to get images that may otherwise cost hundreds or even thousands of pounds to use if acquired from legitimate sources.

He right clicked on the handsome man's image, looked at 'properties' and sure enough there was nothing there about any copyright holder. His first thought was 'perhaps there isn't one', but he wasn't that stupid. Off he went to the Orphan Works website and found out that the image would cost £30 at the size he wanted it for his website. This was far more than the dollar an image sites, but far less than the other sites where photos were far more expensive.

He discovered he had to do a 'diligent search' and the Orphan Works site provided some guidance. So off he went....

1. Google Images. He searched on "handsome man moustache" again - 157,000 results - and there it was, in the place he had already found it about 10 pages, 200 images in. But yes, this is where he got the image in the first place, Terry's site. He looked at another 20 pages, that's 600 images, thought to himself that's diligent enough and moved on to....

2. Getty Images - 81 images. Nothing. At least that was easy.

3. The dollar a photo 'micro' websites - 224 results, 330 images, 1566 images - he remembered he'd already looked there, and moved on.

4. Alamy.com - 328 images

He was getting a bit bored now and went on to try 5 more sites. He'd been diligent for 3 hours. He went back to the Orphan Works site, paid over his £30, ticked the "I've been diligent" box and took the image. He had read somewhere on an obscure page on the Orphan Works site that the image may have no 'model release' allowing commercial uses, but Derek thought to himself that any guy this dashing and handsome must be a male model and so must have allowed permission to use the image.

So Derek planted the image on the home page of his website for his new range of men's underwear aimed at the family man - his site's slogan was "Underwear to transform your sex life".

Three day's later he couldn't understand where the thousands of website hits were coming from. But no one was buying underwear. In fact the following week there were no less than 265,000 visitors. Wow, he thought, I've gone viral!

And then a letter from a big London law firm representing some guy called Lord Mandelson arrived on his doormat. And another from a US law firm babbling on about statutory damages of $50,000 under US copyright law......

This is fictional. The lessons are real.

> The Politician
> The Photographer

Orphan Works - the Fall Guy, the Politician and the Photographer - Part 2

Peter - The Politician

Mandelson was furious. The Intellectual Property Office was the government organisation that ran the Orphan Works website and they reported to him. All through the passage of the Digital Economy Bill the IPO had assured Mandelson that the worries of photographers were completely over the top. In enacting subsequent legislation Mandelson had taken them for their word, after all the stuff about 'embedded metadata' was really all too complicated and there was a real economy to rescue. He demanded to know how his photo could have been used in this way.

It was explained to him (gently) that not everyone knew who he was. People could be diligent about searching without being all knowing. Yes, searching on "Peter Mandelson" in line with IPO guidelines MAY have found the photographer's details but searching on "handsome man moustache" while arguably being sensible enough to be diligent (but in reality pretty stupid) plainly did not work.

Mandelson demanded to know whether the IPO had carried out controlled tests on real examples of "Orphan Works" to see whether the owner of the copyright of images stood a fair chance of being found, even say a 50% chance. Photographers had after all warned of the lack of any effective tools to do this. The IPO explained that the chances were nearer 0% of an image being found in a 'diligent search', the technology did not exist.

This started Mandelson worrying about other of the claims he remembered photographers making. He wanted to know about how successful photographers might be in locating an image on the Orphan Works register once it had been sold as an orphan.....

"Well", he was told, "there are 324,543 images already in the register so every photographer could expect to see some of their images there."
"So," he said, "how long might it take a photographer to look through all these images for one that may have been used?"
"Well, approximately 3 working days".
"And how much may they receive for their effort?"
"We decided on 50% of the fee we received sir"
"So in the case of my image, the photographer got £15"
"That's right sir"
"£15 for 3 days work for a photographer! That's about right."
"But photographers do have other facilities, sir. They can do a keyword search"
"You mean we keyword the images so that photographers can find them"
"Well, yes we keyword them but photographers don't find them - you see a photographer with 5000 different images would have to perform 5000 different searches using different terms to find a few actually used. After all they don't know which images have been used. That sort of search actually takes about a working week"
"So why keyword them"
"Well sir, image buyers who want an image of one subject usually have one search to make"
"So we are sort of running a photo library?"
"Yes minister"
"And does it make money?"
"Indeed minister. With more and more orphans, more and more people are giving up on traditional sources and coming to us to get their photos instead And so few photographers reclaim any money that we've been able to refurbish all the IPO's offices"
"So in fact it seems the scheme is working really well"
"Yes sir."
"Working well in every way except one. For me. HOW DID I FINISH UP BEING MADE A LAUGHING STOCK?"

This is fictional. The lessons are real.

> The Fall Guy
> The Photographer

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.....


This is fictional. The lessons are real.

> The Fall Guy
> The Politician

Friday, 5 March 2010

Per image returns from Alamy slumping (or for me crashing!)

Following on from the last post, I've realised that the slow start to sales I've seen in 2010 (not talked about then because I thought it would turn around) is going to be set in place for a while yet. The reason? Not Alamy's decline this time but Alamy's system for ranking contributors' photos (Alamyrank) and I've noticed that just about every one of my images is now in the bottom rank, at the back end of searches. Shafted by an algorithm!

Perhaps other contributors have been feverishly slaving away improving the prioritisation of their keywords and have simply gone by me in the rankings while I've been sitting watching the money come in. With a re-ranking about every couple of months, on the showing so far my income may be one tenth of last year's unless I get back to where I was.

A month ago I made plans for increased effort on social networking and wrote about them here. The overhaul of my stock photo site is almost complete and I was preparing to substantially increase my efforts but now it seems that there's hard graft ahead sorting out Alamy. It may be 2 or 3 days work, which will probably take me 10 with all the other stuff going on, but there will be a substantial return, assuming I get it right.....