Orphan Works. No it doesn’t.

The UK Government has been pushing a piece of legislation through Parliament called the Digital Economy Bill, the main thrust of which is to set out how the UK manages its digital economy for the future.

Clauses in the bill deal with such subjects as the broadband tax, which charges each household a fee so that all households can be brought up to a minimum connection speed, and controversial legislation allowing illicit file sharers to have their internet connections blocked.

But buried deep within the bill are some clauses which far from protecting the rights of the creative industry, will actually leave almost no protection against infringement. Section 43 of the DEB deals with Orphan Works. Those are creative works (photos, illustrations, videos) which have become separated from their owners. A work with no identifying metadata, no watermark. A child of a creative mind, lost and alone, waiting for Fagin to take it under his “helpful” wing.

The original plan was to allow museums, galleries and the like to release from dusty vaults tens of thousands of forgotten works, the creator of which is unknown, so they could licence them in ways that would bring much needed revenue to those institutions. However, certain politicians not being the sharpest tools in the box thought it would also be a “good thing” to encompass ALL works whose creators could no longer be traced.

As an illustration, a photo you take on Wednesday morning, post to Flickr by lunchtime, is lifted by an unscrupulous blogger or corporate marketeer by 5pm and so (because they stripped your watermark and IPTC info) created an instant orphan by teatime. Anyone stumbling upon that stolen version will have no idea who took it.

tim of horse meat

Your photos could be stolen and used for anything. However objectionable the context.

Because there is no way to trace that photo back to you, even a “diligent” search (as required under the act) would not reveal your ownership of the photo. So anyone else wanting to use that image just has to pay a made-up fee to a newly made-up UK Government licensing body, and off they’d go on their merry way, using your photos for heaven knows what.

If at some point you happen to stumble upon that use of your photo, you’ll be able to go to the Government and ask for “some” money for its use. Assuming the government can see that you took the photo, and that the user of the photo paid the government some money, or beans or a sheep, you’ll be able to claim a fee (or beans, or sheep, who knows?) This fee may or may not reflect the commercial value of your photo, or the money spent taking it, but no matter. Government knows best.

There isn’t time here to go fully into the nightmare scenario of child identification/model release/property release issues in orphaned works used on the net, or exclusivity agreements a photographer may have had with their client before the photo was nicked. Nor is there time really to go into what happens when a UK company steals a photo held by, oh let’s say, Getty – an American company with lawyers whose litigious fingers are twitchier than a Wild West gunslinger’s, and whose fighting fund would bale out Iceland and Greece rolled into one.

The Digital Economy Bill is complicated enough, but the legal ramifications of what happens when it becomes law and all starts to go horribly wrong, will make your head spin like an owl in a blender.

For further enlightenment, go to: Copyright Action, or Stop 43.

Whether professional or amateur, it’s important (if you care about photography at all) to contact your local MP now. The bill looks set get thrown into the Parliamentary “wash-up” on April 6th, where it will not be debated at all and will become law, so there isn’t much time to react.

Other blogs on the subject:

Irish perspective from professional photographer Neil Danton, but mind the blue language…

Scottish photographer David Robertson gives a view.

No really, you’re beautiful…

Hooray! You’ve decided to blow the dust off your aged and failing website, spruce it up with a refresh or redesign, and you’re planning on getting some genuine, original photography shot just for your business. What should you look out for?

Perhaps the first and most obvious thing to think about is the style of photography and photographer you’re after. If you’re promoting your business, you’ll need a specialist commercial photographer. Look at the portfolios of different photographers, and think about whether any given photographer can deliver the quality and style you need. Don’t just pick at random or use the friend of a friend who happens to have a nice camera. Remember, this is your business you’re promoting. How you present it will influence what people think of it.

Budget sensibly. Again, this is your business you’re trying to promote. If your website is your shopfront, it needs to reflect the quality of your business. That needn’t cost a fortune, and making enquiries about likely costs is free.

In my last posting I dwelled on some of the pitfalls and legalities of using stock agency photos (often referred to as microstock because the payments are very small). It’s only right then that I highlight the same for commissioned photography.

  • Don’t assume you, your staff or your business aren’t photogenic enough:

A good photographer will do everything to ensure you and your staff look good, and probably better than you thought possible! Also remember, business isn’t a beauty pageant and people don’t see you the way you see yourself. The same goes for your premises and processes. There may be details and angles you’ve seen a million times and never had a second thought about, but a decent photographer will make them look interesting, and use them to help tell your story.

business man in front of world map

It's your business, show you're proud of it.

  • Watch the price:

As with stock imagery, you need to know what the cost will be. It’s tricky to estimate this without some idea of what will be involved in shooting pictures for you, but draw up a rough brief of what you’d like photographed, how many images you hope to achieve and what the pictures are to be used for (internal comms, external PR, corporate publications and web, advertising etc) so the photographer can give some idea of likely fees. Make sure the time required to shoot the images is sufficient, and make sure the photographer’s estimate includes permission to use the images. I work out my fees based on a combination of the likely time and resources needed for the shoot, the likely number of pictures required, plus the uses the client will require of the images. I combine these elements to give an over-all figure.

  • Check the T&Cs:

Again, as with stock, check the photographer’s T&Cs and that the agreed uses match your requirements. My T&Cs are based on standard UK ones, but the uses agreed vary according to the client’s requirements.

  • Get references:

Ask for references from other clients. I’m certainly happy to offer references if asked (and no, it isn’t my Mum that I’ll put you in touch with!)

  • If things go wrong:

The great thing about working with a specific photographer is that should anything go wrong, you have a human being you can take up the problem with, not a faceless agency. The advantage of a professional is that they will do their best to foresee likely problems and tackle them in advance, and will do their best to keep you happy if there are any issues after the shoot.

The next article in this series will look at the issues involved in taking your own business photos, or getting a friend or relative to do them for you. You can hazard a guess at what I’ll be saying about that…

Captain Caption’s Last Stand

Or, Captain Caption and the WORDS OF DOOOOOOM!

Okay, so we’ve already had two thrilling episodes of Captain Caption, and in this one we see our Lycra(TM) -wearing hero save the day yet again as we delve into the murky waters of the legalities of caption writing.

Actually, if you’re sensible, it’s not all that murky, but it’s wise to be aware of some basics.

I’ll deal with this in two sections, editorial and web. This applies to captions which appear under (or adjacent to) a photo, or the embedded caption in the IPTC table, which I covered previously.

If you’re sending out captions as part of a press release, either to print or web, you need to apply editorial standards. That is to say, the caption needs to be accurate and succinct. The first of those is vital. It is possible to libel someone by using a misleading or false caption on a photo. So stick to the facts of the story, and the realities of what is in the photo.

Be careful with your choice of words in captions. If a teetotaler is photographed holding a glass of water at a charity bash, don’t just caption that Mr X “enjoys a drink at the event” as the connotations could be misconstrued. There are too many examples to list, but common sense should guide you.

deceased footballer george best at portsmouth football ground

George Best - Safe to refer to his drinking because it's true. And in the UK, you can't libel the deceased.

The really simple answer is that if you’re going to send out a photo with a press release, get a press-trained photographer to shoot and caption the images. They’ll understand the style required, and the legalities of accurate captions.

Of course where images on the web are concerned, you still need to be careful to be accurate and avoid libel – perhaps more so because of the reach of the web, but the most commonly-committed sin on web images is to omit or strip out the electronic caption stored in the IPTC table.

You may not think this is much of an issue, and although it isn’t a criminal offence to omit the caption it can still lead to legal problems. Anyone who takes a photograph has the moral right under the Copyright, Designs and Patents Act (1988) to be identified as the author of their work. All professionals and image libraries will state this as a term of use of their images.

Unfortunately, it’s not too difficult to strip out the table and leave the photographer unidentified with their own work. This is an issue which all web designers will need to address increasingly as there are moves afoot to introduce an orphan works act in UK legislation. This would allow image users to find pictures on the net and use them without paying if they can’t track down the original author. It’s a bit more complicated than that, but it’s a huge threat to the viability of professional photography, and could also result in the pictures you took or bought for your business web site being lifted and used in ways you might not appreciate and without the IPTC caption identifying the author, it makes the images even harder to keep track of once they’re out there.

So remember, when composing captions; play safe, be accurate, keep it simple and make sure you keep it attached to the photo.

But now Captain Caption has flown his last mission. The skin-tight hero costume is wearing alarmingly thin at the crotch, and the cape keeps getting tangled in revolving doors, so I’m going to leave captions for a bit. Of course if this or the other articles have thrown up any questions for you, do comment them here and I’ll answer as best I can.