Stop 43

I like taking photos. It’s probable that you, whoever you are, also take photos, either with a camera or cell phone. It’s just as probable that you upload them to the internet. To Flickr, Facebook, Picasa, Instagram and other photo sharing sites. We all own our own photos. If your photo was taken after 1978, it’s automatically copyrighted for as long as you live and then a further 70 years after they put you in the ground. Which, incidentally, I hope is many, many years from now. So, in summary, the photos we take are our property. Except, they’re potentially not. Not anymore. Not in the UK.

I took the photo below, and shared it on Flickr. Now I’m sharing it on my blog. Want to use it? Fine. I’m pretty easy going. All my photos are licensed on Creative Commons, and anyone can use my photos for non-commercial purposes for free. Want to use it for a commercial purpose? I’ll probably be ok with that. Get in touch, and we’ll agree a price, providing I’m happy with who is using it and how. Actually, the image above perhaps isn’t the best example, because it’s a photo of artwork by Damian Hirst, and he might have copyright issues if I sold it commercially!

What if someone uses my image for commercial purposes without telling me? Well, that’s called theft and I will seek recompense, and plenty of it. Far more recompense than had they just asked in the first place. But here’s the problem. There’s every chance that in future I might find myself unable to negotiate or demand a fee or damages. I may not even be able to get them to stop using the image. Why? Because, under the UK Enterprise and Regulatory Reform Act, they may well be using the image legally. Yes, it is still my image, yes it is still in copyright. But no, copyright doesn’t actually mean anything.


Here’s the issue*. Random people out there in the world do have a habit of using images that don’t belong to them. Let’s say a chap called John Doe decides to start a blog. He writes a half dozen posts, and then gives up. In one of those posts he used your photo. Can John Doe be contacted? Nope, he used a pseudonym and never did get round to putting contact info on his blog. Anyway, along comes some ad company, and they see that photo on his blog. They like it. They try to contact him and, of course, fail. At that point, the photo is considered ‘orphaned’. And now that it’s orphaned, the ad company can use it. They have to pay a fee to a Collective Licensing Organisation. But you, the owner of the photo, get nothing.

Your photos can become orphaned almost instantly. The moment you upload them to the internet, they are exposed. If one is used under the new Act, then it’s your job to find that out and to claim a fee from the Collective Licensing body. And as I understand it,  they’ll tell you what you get paid. And if you don’t like it, then tough. And if you don’t want it used in the way it is being used, there’s a big question mark over whether you can put a stop to it. This is a genuine and serious issue. I know for a fact that dozens of my images have been used across dozens of sites on the internet. These are just the ones I’ve found or come across and therefore know about. Some of them credit me, many don’t. Some asked my permission (technically unnecessary), many didn’t.

As a photographer, this irks me, to put it mildly, on three main counts. Firstly, as a point of principal. If the photo isn’t yours and can’t be purchased from the owner, then don’t use it. If it’s a digital image, then it’s clearly been taken after 1978 and is therefore still in copyright – fact. Secondly, I may well not want a particular organisation to use any of my photos. For example, if the English Defence League, or other extremist group, found a photo of a flag that I’ve taken and decided they liked it, I would reject their offer. Thirdly, every time an orphaned photo is bought through Collective Licensing, potentially two photographers are robbed of their rightful dues. The guy or gal who took the photo. And the photographer of an alternative image that would otherwise have been purchased.

A Tempest Indeed

*There are actually many issues. I’m not going to pretend I’ve gone into all of them, let alone understand all of them. I still have many unanswered questions myself. Many of those questions, it appears, currently have no answers. Some parts of the Enterprise and Regulatory Reform Act are poorly defined, and we will have to wait and see how it works. How will this work internationally? If an orphaned image belongs to an American, for example? How on earth would any one know the nationality of a photographer? There are positive benefits to the bill too, though,  in that cultural entities such as museums and libraries need legislation in order to allow them to preserve important photos.

But it seems to me to be another shoddy piece of legislation, part of the Digital Economy Act, that’s been rashly thought up by people with little concern for their constituents and maximum concern for big business. It’s been rushed through parliament without proper debate and it’s just yet another sorry chapter of government and business not understanding what the digital age is or means. There’s plenty of research you can do if you’re interested. There is an organised protest group called Stop 43 (Clause 43 is the relevant part of the Act), and articles on the BBC and New Statesman. The Act has been referred to as the Instagram Act.

I do wonder how the photo above stands in copyright law. Of course, I did not take it. That’s me in the photo. It was taken prior to 1978. But I scanned it, with permission, and processed it through Photoshop, creating a new and discernibly different image.




9 thoughts on “Stop 43

  1. Thanks for that interesting coverage. I’m probably one of the few out there who has not posted photos of any significance on the internet. (Sure, a couple of lesser….).

    I must admit, it will take me a long time to digest your whole post. But the issues of copyright of photos as well of other materials is very complex, AND interesting. So many people nowadays take these issues lightly, which only makes it harder on the rightful owners who must sometimes assume the cost of litigation. I don’t know about the UK, but I’ve always believed that “crimes” such as patent or copyright violation should be treated as other crimes, whereby the government does the prosecution. If the original creator did not have to face the cost of prosecution, think how much more creativity might be generated?

    Anyhow, good luck on this effort. I will read your post more thoroughly soon, and keep touch with it.


  2. Copyright law is a shambles. Especially in The States. Most of that has been driven by Disney’s greed and its political power with the party that is supposed to be wary of business interests. But, in addition to the slimy politics, the law simply has not come to terms with the digital age. It had not even come to terms with the photocopier — the precursor of digitization. I am not certain what the answer is. What does concern me is there is now almost an entire generation who believes that if something is digitized, it is free for the taking. If the attitude prevails, copyright will be useless. No matter how many letters are mailed by the lawyers for The Mad Mouse.


    • The monster behind Mickey takes many forms. I’m not so familiar with the copyright one. I guess his pro Germany stance in the 30s and 40s are better known.

      Copyright law is a shambles. I also have no answer. Perhaps because it is one of the most complex, diverse and changeable entities in our century/.


  3. Kim G says:

    Supposedly you can buy a plug-in for Photoshop that will tag your photos and then track them on the internet. At least that would give you a heads up as to where your photos were.

    As for copyright, I totally support the right of authors to govern the use of their works for a reasonable period of time. But for life and then a further 70 years after one’s death? Drug companies who develop life-saving medicines at the cost of hundreds of millions of dollars only get about twenty years of exclusivity. Why should a photograph be so much more protected?

    This is the kind of thinking that leads to Campfire
    girls not being able to sing well-known songs around the campfire since the songs are copyrighted.

    Copyright protection does encourage innovation up to a point, but beyond that point it encourages content producers to sit on their asses and create schlock like movies based on fifty-year old TV shows.


    Kim G
    Boston, MA
    Where we’ve only got a few photos on the internet due to the hassle of uploading them.


    • Digimarc has a tracking component, but it’s pricey. And I don’t know why it was decided to copyright photos for so long. It seems excessive.

      I can’t pretend to have a coherent and consistent ideology regards copyright. I was going to bring up the pharma copyrights in my reply to Steve. Drug companies show the best and worst of western industry today, in my opinion. The miracles of 21st century medicine are evident in our increasing average lifespan.

      Yet, the profiteering, the iffy trials, shocking business practices in the developing world are all tough to overlook. Then there’s the issue of anti biotics. Perhaps the most important single issue facing medicine today, the one that is the biggest life saver, and they are investing next to nothing. But I’m going off topic.

      One argument is that we could just abandon copyright. Will people simply stop innovating, creating and producing? I doubt it, but it’s a slightly dangerous path to go down.

      I like the campfire analogy. Do you know which song has raked in the most dollars ever? By far the most dollars ever…..and it’s not White Christmas!


      • Meh. Why keep you all in such suspense…it’s this one. Warner Bros have the copyright, and pull in a few more cents everytime it’s sung in a licensed restaurant, put into a musical card etc.


        • Kim G says:

          I would have guessed that one. And the little boy is ADORABE!!! And talented too, it seems!


          Kim G


      • Kim G says:

        I think that the entire history of the Renaissance proves that lack of copyright is no impediment to producing great works of art. Nor, for that matter, does Mexico (with incredibly lax enforcement of copyright) lack in artistic output.

        I suspect that abandoning copyright entirely might diminish output, particularly of a corporate-sponsored variety, but wouldn’t stanch it completely.

        But I’m not in favor of abandoning it entirely, just trimming it down. And fer crissakes, get Micky into the public domain where he belongs!!!

        Kim G


        • It’s an entirely possible we’d have a future devoid of the Justin Bieber’s, Back Street Boys and Spice Girls. Which, perhaps, makes piracy a good thing…!


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