Copyright and 'Orphan Works' in Photography

Copyright in Photography.

The definitive term of what copyright is: The exclusive right to publish, perform, film or record literary, artistic or musical material. So this means that copyright gives the author of the work be it film, art, music or photography, the exclusive right of ownership on the works, so the only person who is allowed to copy or reproduce the works is the author.  So for example, when a photographer takes a photograph the copyright belongs to them, unless it is an image taken by an employee for an employer; being commissioned to take images for a newspaper, magazine or other projects where the photographer has been hired to do a job, then the copyright will belong to the employer unless stating otherwise in their contract. But if a photographer is taking the image for their own personal use that is not attached to a contract then all rights are reserved to the photographer. 

The reason there is such thing as copyright, is to protect the author/creator from having their work stolen and passed off as someone else’s - plagiarism. Copyright stops other people from copying and mass producing your own creative work and making money off it.

One of the recent debates with regards to copyright in photography is the recent law that was passed by parliament called ‘Orphan Works’ which are photographs that do not state who the image was taken by, so basically it means that if an image has been found on the internet for example and someone wants to use it but cannot contact the photographer who took the image because they may be deceased or there is no record or information leading to who the photographer is, so as long as a ‘diligent search’ has been carried out and there is still no information to who the photographer is, these images can be licensed for commercial and non-commercial use. 

According to a BBC news report on the matter of Orphan Works, it states that ‘However, in order to do so, the company in question would have to prove to an independent body that a "diligent search" to find and approach the copyright holder had taken place without success. If the body is satisfied there has been a sufficient search, it would then allow the company to pay a licence fee to use the material. From what I have gathered, the money that is paid by said company as the licensing fee is held by the independent body in case the copy rights holder comes forward or is found. Then that money would be paid to the rights holder.
              
I personally think that as a photographer any image I take should belong to me no matter what, if I have taken that image it belong to me and only me should I chose to sell it or mass produce it. I think the fact that a company can just own a body of work because they claim to not be able to trace the copyright holder after a ‘diligent search’ which the company’s probably don’t actually adhere to! 

I think it’s very unfair that companies can make money off this and only have to pay a simple licensing fee! If one of my images were to be used in such a way and I found out or was contacted eventually after the company gained full licensing to my image and all I was entitled to is the licensing fee but yet the company could have made  thousands or millions I would be so outraged. 

I don’t think this should be allowed as it just gives companies the chance to use and abuse peoples work, what about the people who have deceased and can’t speak for themselves beyond the grave? What if someone had their whole life’s work taken advantage of and the photographer didn’t ever want people to see it publicly because it was extremely personal to them? But then some company comes along and just steals this person’s work and makes money off it? It’s not fair in any way shape or form. It takes away from the creative mind behind the image and even the personal attachment. If the person was alive all they are entitled to is the licensing fee?? 

According to the Stop43.org.uk site, the person would have to discover that their image has been exploited, re-claim the parentage of the work and then claim a PORTION of the licensing fee – so they wouldn't even be entitled to the full licensing fee as well as any money the company made from using your image. I think this legislation is just a 'legal' form of thievery and is not fair to photographers who have had their work fall in to the categorisation of  Orphan Works.

www.stop43.org.uk

Please do feel free to leave your thoughts on this matter below.