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Apr 29 2013

UK Law Will Harm Photographer’s Rights

My friend Robert Krausankas of copyright-trolls.com sent me a link to an article about a new UK Copyright law that could have a devastating impact on photographers’ rights. The new Act(called the Enterprise and Regulatory Reform Act, which received Royal Assent) states that all “orphaned works” can be used for free by anyone. An orphaned work is any creative work (not just photos) whose authorship cannot be attributed with due diligence. Since that will rarely happen to films, TV shows, recorded music, and such other works of art, this law will have its greatest immediate impact on digital photography. The article, called “IS the UK Government Trying to Kill Off Photographers?,” can be found at photothisandthat.co.uk.

Imagine if I re-post a digital image sent to me by a friend of mine but I do not attribute it to anyone, and a third party sees it and likes it. If I don’t respond to that third party’s requests about who owns the copyright in the photo, that image could be considered an “orphaned work.” That third party could then use it on a website, a TV commercial or however they see fit. Considering the millions of images uploaded without attribution or connection to the copyright holder, this could cause UK photographers to lose valuable copyrights.

Particularly frustrating for photographers is that many social media websites strip away the metadata imbedded in the photo which shows the authorship. Even watermarking the image only affords some protection as that can be deleted or cropped out and then re-posted and found that way by a third party with no knowledge of the watermark or metadata.

copyright logoWhat’s unusual about this bill is that UK copyright law already favors a person who used a work of art innocently – UK copyright law states that the only recourse against an innocent infringer is that they must cease and desist from use of the work and that the copyright holder is not entitled to damages. So why make it even harder for artists to protect their work?

I have been fighting digital image warehouses like Getty Images for the past five years over their extortionate, threatening letters to innocent folks who did not know they were infringing on anyone when they used an image put on their website by some web developer they hired or bought from a website template company. I have often lamented on the site extortionletterinfo.com for protection for US innocent infringers like the one in the UK Copyright law. (Here, even innocent infringers are subject to a damages claim). But this goes too far. At the very least, the law should include a provision that only the copyright holder can delete metadata they inserted to establish authorship. The author of the UK article, Edmond Terakopian, suggest this as well. He also asks UK citizens to fight the passage of the Act by contacting Members of Parliament who have to vote it in before the Act can become Law. Will this is an admirable plea, it appears futile as he also reports that no Act which receives Royal Assent has failed to become legislation since 1979.

Many US photographers have their works published abroad and hold copyrights in the UK. They would be wise to register their images in the UK Copyright Office as further protection against losing their rights do this unnecessary and overbroad piece of legislation.

3 comments

  1. Bob

    Dear Oscar

    Why do you keep peddling this claptrap……….What’s unusual about this bill is that UK copyright law already favors a person who used a work of art innocently – UK copyright law states that the only recourse against an innocent infringer is that they must cease and desist from use of the work and that the copyright holder is not entitled to damages.

    There is no such thing as innocent infringement in UK copyright law.

    http://www.swanturton.com/articles/CTSPBFair.aspx?template=articlesprinter.aspx

    Has this to say………..

    Section 97(1)
    There is only one exception to this, an exception so minor that I’ve never come across it in practice. Section 97(1) of the Copyright Act gives a limited defence to copyright infringers if they “did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates.” This is really minor. The example given in the text book is of a photograph pronounced by experts to be the work of A, who died 80 years ago, which is in fact the work of B, who died only 60 years ago.
    Even then, you don’t get any actual right to use these obscure works. The copyright owner can still get an injunction to stop the use of the work, and can still claim any profits you made from using it. What he can’t do is claim damages.

    More recently Justice Birss repeated this in an actual case.
    http://www.swanturton.com/ebulletins/archive/InnocenceIsNoDefence.aspx#.UYJC-YKfLFc

    1. Oscar Michelen

      Dear Bob: Far from being “proven wrong” by the article and decision referenced in your comment, it in fact vindicates much of what I have been saying about this issue. While the judge did state that Section 97 does not apply to those who believe they have a right to use the image but are also aware that copyright subsists in the work as opposed to those who believe no copyright subsist in the work at all, the judge did state that this section is frequently thought to protect the first group described. Section 97 does in fact protect those who innocently believe no copyright existed in the work they used without permission. But more importantly, the judge declined using the high fees that would have been imposed by the licensing pricing on the website that had the rights to the images. Instead the court stated that “The right sum by way of damages is the sum which a willing photographer in Mr Hoffman’s position and a willing user in the defendant’s position would have agreed upon as a charge for using the photographs on the websites.” That is nearly word for word what I tell Getty in my initial responses to their letters. The court then went on to award only 10,000 pounds for the use of 19 photos for four years or about 526 pounds per picture. Again, when you consider that the vast majority of folks who get Getty letters only use one image and only use that image for a few months before they are told that the image is a Getty image, our frequently stated position that $200 is a proper offer is also fully vindicated by the court. So I am not insulted by your calling my position “claptrap” as the decision you enlightened me to more supports my position than weakens it. Thanks for the post.

  2. Bob

    “Section 97 does in fact protect those who innocently believe no copyright existed in the work they used without permission.”

    Dear Oscar

    If you still believe this is a protection against using Getty images you haven’t read what Charlie Swan said. He has never heard of a case. If one of the UK’s top IP lawyers has not heard of a case it cannot be much protection for general image thieves.

    Another comment on the case has this to say………….

    A s97(1) defence is often raised by lay-persons who see it as a ‘get out of jail free’ card, in reality however it is only really of practical use when considering works of some age where a good level of due-diligence cannot reveal whether or not the work is still protected by copyright. Even in such a situation the defendant is only protected from an award of damages and may still be liable for an account of profits as well as the other non-monetary remedies that are available to a claimant in a copyright infringement claim.

    As to the Quantum……….

    There were many other aspects which reduced the amount. I regularly ask for £500 and get between that figure and £1,500 for a single image for up to one year. That is currently $777 to $2330. These are not extortionate amounts. I would treat $200 as an insult.

    ATB

    Bob

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