April 20th, 2008

Dylan Feng Shui

Copyright and Orphan Works: Once More, With Footnotes?*

Yes, yes, I know. Another post on orphan works. But another question/issue was raised and so I figured I would go ahead and address it. I find this stuff interesting. Feel free to scroll away if you just don't care. :)

(FYI: Post 1 and Post 2 on this issue.)

...Man, I think I need an icon just for this stuff.

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The issue this time is concern over the potential for visual works to be considered "orphaned" even when they're not. This came up in this discussion in comments here. In short, visual media folks are concerned about the orphan works concept because it's harder to use a defined set of search criteria (i.e. a phrase or title or author) on something like an unattributed photo. Thus, there is a less clear standard of "reasonableness" regarding whatever search has been done.

The portion of my comment on sonnyliew's journal that isn't from my previous entry follows:

"I realize there is more potential for abuse with visual works as opposed to things with words, because the search terms are less finite and/or agreed upon by all. However, that potential for abuse already exists - photos/images are already harder to locate information for. One thing to consider is that the Copyright Office recommends consideration of infringement on a "case-by-case" basis - i.e. a judge will decide the issue of reasonableness. If there *is* a photo database, and the infringing user didn't search it, the case might end there - the artist wins, the infringer doesn't get the limitation on remedies. Even if the infringing user checked the Copyright Office records and prominent databases, if there are other obvious places the user failed to check (a Google image search, a search for any name or title on the photo, inquiring about the photo from whereever he/she originally found it, etc.) the search may STILL not be found to be reasonable.

One good thing about published visual works is that they have to have originated somewhere that allowed the user to easily copy them. If the infringer has a copy of a photo or image, where did he/she get it? A book or magazine? There's probably a credit somewhere in the book or magazine, and the infringing user would certainly be on notice that this visual work had some commercial value. An art gallery postcard? Same. A website? There may not be attribution there. However, did he or she ask the person on the site where it came from? Did that person have an answer? The creator may have been found, just like that. Or, if the site owner got it from another site without any idea where it came from, the next logical place of inquiry may have been found (and another infringing user located). It seems unlikely to me that a court would consider a search "reasonable" if the infringing user had failed to conduct a more-than-perfunctory search of some sort based on where he or she got the image in the first place.

Yes, the court may look at whether the work was available for search in databases - but if there are other ways to find it, and the creator can rebut the infringing user's argument of a reasonable search by showing those other easy ways, the search would likely not be considered reasonable.

I talked in my paper about the potential for abuse - I very much understand it is there. I think that the more "reasonableness" guidelines the law can provide, the better. But in the end, following the basic guidelines could be looked at as a threshold requirement - i.e. if the infringing user hasn't met them, he/she can't even move on to other considerations of reasonableness."

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OK, now once again I'm going to pull from my paper, specifically the portion on

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Just for fun, let's give finding the creator of a published image on the internet a trial run to see how a reasonable search might work. I'm just going to pick some search terms and see where they lead.

Search Term 1: "Weird Art"

OK. Weird art brings up this Google image page

Let's say I like the image here.

OK, this one's easy. I have the name of the artist (Leah Saulnier), and her website. The artist has an email address on her site, by which she may be contacted and asked for permission to use the work. Piece of cake.

Let's try again:

Search Term 2: "something wicked"

The search brings up this page.

I really like these pictures of clouds. This is a blogger, who took a picture of a storm coming in. Clicking on view profile gets me to her profile, where she lists her webpage. Following that link gives what I presume to be the photographer's name, as well as contact info. Ta-da.

Different situation: Flickr.

Let's try the site that apparently causes so much alarm to Mark Simon: Flickr.

OK. I want to find a neat rainy day photo. I'll use their search function.

I've got choices!

This is an awesome photo and I want to use it.

The photographer has a profile, which lists a website. It also gives the photographer's name. Oh no! I don't see an email address! But look! Flickr has a mail function, so if you are signed in you could email him through Flickr. Hooray! Even if you don't know that, or can't find the guy's email address, the point is that the work is not orphaned. A 5 minute search has found you a creator. Ta-da!

I'm not saying this always works. I'd also be glad to try searches for any pics that don't, on first glance, have a creator. Feel free to suggest some.

* And speaking of attributions, "Once More with Footnotes" is the title of a collection of essays re: Terry Pratchett. Just so you know.