The Copyright Conspiracy
Copyright is intended to protect the creator of an original work. It certainly attempts to do its best for the large entertainment companies. When applied to the one of the most exciting things to happen in recent memory—the sheer mass of creativity that is being unleashed by the general public on the Internet—its default protection is something akin to that provided by a piece of tissue paper when an elephant sneezes. The vast majority of the photographs on Flickr and other photo sharing sites, probably something like 99.999999% of them, are in a state which results in effectively zero protection by U.S. copyright law.
"But wait...", you say. "That's not right. Every creative work is protected by copyright from the moment it is created."
Yes, you are indeed correct. Title 17 of the US Code says that copyright protection is in effect from the time the work is created in fixed form. It goes on to say that the copyright in a work immediately belongs to the author of the work and that only the author or those deriving rights through the author can rightfully claim copyright. If somebody misuses your work, you're able to sue them and collect actual damages, the amount of money that you're out by the infringer not properly licensing the work.
Here's the problem. Without performing one more step past creating the work, that's all you are eligible for. If a company misuses a photograph that would normally be licensed for a particular use for $500, that's all you are eligible for. It'll cost more than that in legal fees for your lawyer to even start the case. And even if a company misuses a photograph in a way that would have required thousands or tens of thousands of dollars to license, you're probably going to be still net-negative on legal fees if your pursue them. After all, they probably have deeper pockets than you do.
What's this magical after the fact of creation step I'm referring to? It's called registration.
Copyright registration is supposed to be a legal formality intended to put the basic facts of copyright into the public record so that there's no question about who own a particular work. It goes well beyond being a simple formality, however. If your work is registered before an infringement occurs, or within 90 days of first publication even if the infringement happens before the registration, then not only are you eligible for actual damages, but you are also eligible for punitive damages and legal fees.
Ding! Being eligible for punitive damages is nice and all, but it's that last bit that makes it worth it. It means that you as a little guy could successfully take on any titan of commerce and find a lawyer that will be happy to take your case. It means that if you want your copyright to mean anything, you have to register your work.
The problem is that the copyright registration is a process was put into place long before enthusiasts shared their work online. It's a system that was designed for a pre-Internet society. And, the process takes time and money. Unless you are in the business of making a living from your creative work, it's likely that you'll never do it.
How big is the barrier? Well, each submission of a group of images costs $45. But that's just the start of it. You have to factor in the cost of the time to pull together everything, the cost of the materials to print contact sheets and burn DVDs, and the cost to send everything to Washington DC in a way that you can keep track of when the Copyright Office received your submission. Given that the mail via USPS to government buildings gets delayed thanks to anti-anthrax procedures, you really need to use FedEx or the like to get a confirmation of delivery in a timely fashion.
"Ok", you might say, "I'll just register my work before I publish them or within the 90 day window"
Good plan. That's what I do now. And, because I publish my some of my work on Flickr the same day I make it, I'm on a treadmill of submitting my work while it is within the 90 day window provided by law. In fact, to help prevent timing problems, I try to submit once a month. Every two months at the latest. Each time I do this, I sort out the published work from the last month or two from the unpublished work resulting in two submissions. For each submission, I create DVDs, print contact sheets, and ship them FedEx so that I can get a prompt proof of delivery.
"Wait, that is a total pain in the ass!" I hear some of you saying.
You're absolutely right. And, it's a pain in the pocketbook as well. When all is said and done, I'll spend well over $1000 in fees, materials, and delivery costs this year registering my work. Maybe closer to $1500. That money that won't pay for equipment, computers, travel, or go into my pocket as profit. And I'm not even factoring in time here. For a big business, this cost wouldn't even register. For a small business like my own, it's a significant cost.
"Oh, boo-hoo!", others might say. "Buck up and deal with it!"
Sigh. OK. I am indeed bucking up and dealing with it. I'm doing so because my work gets infringed all of the time. And soon I'll be able to do something more about those cases of infringement than just whine, write a blog post about it, and hope to get an apology. Because I'm in business as a photographer, it makes sense to register my work.
Here's the catch, however: most of the people on Flickr aren't registering their work. I'll bet that most of the work on other photo sharing sites isn't registered. Unless you are making money from your creative work, the cost and complexity of registration is prohibitive. And here's where I come to the conspiracy part.
Big, middle, and even small media-using companies are quite aware of the state of things. They know that all those tasty photographs out there on Flickr and the rest of the World Wide Web are protected by copyright. They also know that most people aren't going to have registered that work and that without registration, they are probably pretty safe if they do happen to use it without permission. After all, if they find the perfect picture and it turns out that the copyright holder turns up later and makes a fuss, the most likely case is that they are liable for very little, if anything at all. They're probably not going to get sued because the costs of doing so for the copyright owner are prohibitive.
So, in such a situation, how much effort are they going to put into making sure that every piece of media they use is correctly licensed. Even the most noble of companies is going to realize that there's a cost/benefit analysis here that points to not being as proactive as possible. And the worst of companies, well, some of them surely are exploiting this. After all, if 99.9999% of the content out there isn't registered, getting hurt by the odd one that is registered doesn't look like such a big risk, does it?
"Come on, you're not serious..."
I can't prove that this is true. But, having dug to the bottom of lots of cases of copyright infringement of my work, it certainly starts feeling like a conspiracy. Especially when each case of copyright infringement seems to come back with an excuse of "Oh, we had somebody new doing this. They didn't know better." It's like the excuse of being stuck in traffic. We all get stuck in traffic often enough to know that it's always a plausible excuse, yet it has to be one of the most abused stories out there.
Once I started looking at the costs and process of registration of my own work, it became clear the economics of the situation were not in the favor of the little guy. The problem is that the little guys are making most of the cool stuff these days. They deserve not to have their work exploited because the economics of the current copyright regime is set up to favor the large corporations. Just as copyright law is set up to be abused by those with big pockets against their customers, it is set up to be abused by those same entities with big pockets against individual creators. No matter how you slice it, the little guy gets the bad end of the deal.
It wasn't supposed to be this way. When the United States joined the Berne convention in 1988, making copyright automatic upon creation, all the formalities of U.S. copyright protection were supposed to go away. Most of the formalities for copyright in the U.S. did, in fact, go away. But, requiring registration for the award of legal fees to bring suit means that it's still effectively required in order to protect a copyright.
We need a copyright system that takes into account the reality of content creation on the Internet. One that isn't just set up for companies, but one that protects individuals as well. It'll take an act of Congress to fix this. Of course, you know who Congress answers to: those with deep pockets.
Tell me there's no conspiracy here. Even if it's just a circumstantial one.
Related Posts:
Related Links:
- Why Your Copyright Protection is Second Rate, on Plagiarism Today
17 Comments
I agree wholeheartedly - the whole system is even more fucked imho because of the international aspect of the internet and applications such as flickr... then there's a whole discussion to be had on the role of IP in promoting the creation of work too. The legal system has become a method of protection by the large/powerful/wealthy against the smaller/weaker/poorer opponents regardless as to who is in the right or wrong.
I'll write something back more substantive but I'll have to leave it here in the meantime.
Note: I've had an image published without consent (story to come) in a Sydney music magazine - only found it because I saw it while reading. Apparently the art department googled it. More to come on this.
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I was wondering if you had used the LOC's "beta" online copyright registration service? It's $35 instead of $45 for the basic registration, and supposedly allows electronic submission of the files.
I only ask, because I have been unable to create an account, as it says my password(s) are not acceptable (and I haven't had a chance to call them during business hours). It seems like it could cut down on some of the expenses (assuming the electronic submission will work for the volume, and you have a decent connection), while it doesn't really address the amount the fees add up to.
Aside from that, I agree that things should change to stop the "accidents" of misuse whether due to a company not caring or not doing the due diligence, because they know the likely lack of consequences.
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Joel: Indeed, the international aspect of it complicates things greatly. And tools like Flickr. The U.S. needs to fix this. Sorry to hear about your image misuse. I look forward to hearing about how it goes.
AJ: I've got a login to the LOC beta service, but apparently, I'm not yet set up to do submissions. In any case, the website is atrociously bad. Horrid. I will use it as soon as practical, however, because it will speed up registration and cut out materials and shipping costs (which are not insignificant).
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I agree too that the copyright infrigement issue is really going out of hands : every goddamn company I have worked for as a project manager or as a developer has proposed to use an image this way. I usually succeed to convince them otherwise (same as for sound).
As a web developer I had started a web site for photographers where we'd taken the hard way : watermarking by default 'right in your face' : accross the image, from top left to bottom right, a string that was repeated. Well, I'm afraid to say that doing this on the 'big' version of the file was not enough : we did that on the 800x600 preview, but not on the smaller versions. Some clients reported that hte smaller previews had been used without permission.
Yes, even a 320x240 pixels image has to be protected by a big watermark!
Sound is in a better position there : it's harder to rip a sound preview (except with rogue amoeba's software) and they usually only send you a part of the file. And people in the sound industry (I'm talking stock sounds) seem to respect more the work that has been made.
The little man's position is the hardest, because you are between the big industry and the general public : the general public now thinks they are photographers and some of their pictures are very nice and usable indeed, but they don't sell their work : everything's free.
If you look at the story of industries, thay all made a fortune out of stealing or privatizing something originally free : oil, airwaves, info on the internet... Flickr and Google are no better than phone operators making billions out of our airwaves.
As a photographer, I recommend to never publish anything, or only with watermarking that you can't move out of the way. Sad? Definitely.
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I wonder how the global nature of the internet affects this. For example, in Australia there is no concept of registration of copyright. It just exists. If you sue for infringement and win you get legal costs and whatever damages the court thinks appropriate (including punitive damages in some cases). An infringement by, say, cnet is published into Australia (or the UK, or Europe) just as much as into the US.
The problem you have then is no standing to sue anywhere but in the US.
Interesting post anyway - thanks.
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Another copyright conspiracy is that rightsholders like you keep repeating untruths like this one:
[USC Title 17] goes on to say that the copyright in a work immediately becomes the property of the author of the work and that only the author or those deriving rights through the author can rightfully claim copyright.
Please do tell, where exactly in Title 17 does it say that copyrights are property?!
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I was about to say: "Could another entity do it?" Like flickr, another startup or a non-profit? If so it could take the burden off of the individual. You would only pay a monthly fee or something and be done. This LOC service sounds interesting. Let us know when it's ready for prime time.
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The whole point of registration is to prove who and when the media in question was created.
If you got rid of the registration requirement, you're most likely going to be stuck with having to prove that you created the works and when. In other industries, like scientific research, this is done by creating lab notebooks and other records - you write down what you did on each day, and it provides a record for patent litigation, etc.
Jumping this into the technological realm, you could write a simple program that creates a cryptographic hash of the contents of your original files and their sizes , puts it in a "lab notebook" file, then uploads the file to a neutral 3rd party. Total transfer size would be fairly small. Additionally, if the hashes of all previous "lab notebook" files were included in the current file, you could verify going backward that none of them had been changed or tampered with. Unless someone figures out how to massively break the hashing scheme while still keeping the file contents recognizable (unlikely), you'd have cryptographic evidence of ownership of those files.
Additionally, your content never leaves your control, but you can prove when you created it, which, in a post-registration-required world would probably be enough to start litigation.
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When looking at the forms for submitting work to the copyright office, I got a little confused about published vs. unpublished in regards to the Internet. If an image is posted online (my Flickr or website) does that count as published, or do they mean it in more commercial terms. I ask since the published question seems to determine what form I should use (short or standard form VA).
Thanks for the excellent post. I hope that the LOC can create a system more friendly to modern copyright needs.
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Cyril: Many would agree with you about not publishing their images to protect them. I think, however, that not publishing is also detrimental in many cases. In the amateur case, sharing among your social network is an important part of being in that social network. And in the commercial case, if your work isn't seen, you're not going to get more work.
Adam: That's a good question. The global nature of the Internet makes things even more complicated. It's all a matter of jurisdiction which, I believe, depends on where the infringement happened. And of course, this is why U.S. Copyright law matters to even those living in other countries.
Finite: I'd disagree on that point. But, I agree that the word "property" is not necessary to what I'm trying to say. I've edited the post to read "copyright in a work belongs to the author of the work".
Torsten: I could be wrong, but I don't think using another entity would do the trick. At least without a change to the law.
Zackofalltrades: Indeed, registration helps to prove who owns rights to media. However, this doesn't seem to be a problem in the other countries that are party to the Berne Convention. I don't know what the burden of proof that you have to have is. It'd be something to look up.
Ben: I'm not a lawyer, nor do I play one on TV, but my understanding is that if you've posted it online, say to Flickr, it can be considered to be published. That's certainly the metric that I use.
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Even if there is no provable conspiracy, posts like this one help put the issue out into the open.
Also, registration as a service for photographers sounds like a business opportunity to me.
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Photography is in a pretty unique position, which is good and bad.
Movies and music are expensive to produce and are therefore worth the copyright holders registering their rights. Books are cheaper to create but no fun to "consume" on a computer.
Photographs, on the other hand, can be produced by a person working alone (I hesitate to say cheaply as I'm currently weighing up a more healthy bank balance and a 40D) but can be enjoyed and easily copied digitally.
As far as I know there is nothing like the MPAA or RIAA looking out for the rights of content creators, nor anything like a record label or move studios who look out for their own artists. (Let's ignore for the moment the methods by which these companies protect their work.) I wrote a longer version of this on my website last year.
I'm not sure what the answer is, but the current system isn't working!
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I would think there's a business opportunity in this for someone: Charge a fee on top of that $45 dollars, give them a web site to upload images, print the necessaries and do the registration...
-Tim
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Proving copyright without registration is not that tough most of the time, particularly with photos. With film, you have the negs. With digital, you have the original image with EXIF, usually including camera serial no.
You don't have to prove ownership beyond a reasonable doubt, just on the balance of probabilities (or, as I think the American term is - on the preponderance of the evidence).
In any event, even a fraudster could find a way to register work for copyright.
Basically, registration is a reasonable concept that no longer works because the burden of registration is too high. That leaves all the other copyrighted material underprotected. This is especially the case when the US registration system is out of step with other major legal systems.
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Interesting point by Tim Boudreau. Could this be a 3rd party service?
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You could talk to Idee [http://www.ideeinc.com/] about this - they've got some really awesome software made for situations like this one.
The idea is that you register your images with them, and they search them out online and in print, and notify the users that they're yours, and send them a bill. I've seen the results of the algorithms they use to do the fuzzy image matching, and it's incredible; crazy cropping, photoshopping, colour alteration, and other pretty drastic changes can't seem to fool it.
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tim, paul: It might be a possibility for a 3rd party service. I'm not sure, however given that there's a fair amount of record keeping you have to keep on your side of the equation. I use tags and some other metadata in my own image archives to keep track of things. Not sure how a third party could do that. But the space is open.
Edward: I'd like to see the software in action. Unfortunately, right now there's no availability info except for a "call us", which probably translates into an enterprise kind of license. The search mentioned on their blog sounds interesting:
http://blog.ideeinc.com/2008/03/27/project-codename-tineye-launched-in-private-beta/
It'll be interesting to see where this kind of tech goes. I'd certainly be interesting in using it.
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