The Bizzaro World of Orphan Works

You pass a post office. Someone double-parks their car, leaves the car empty with the motor running and strolls over to the post office to drop a letter in the mail box. Do you assume that the car is now yours and drive off with it?

You are a publisher. You find a neat photo of a dog that you would like to use but can’t find the photographer because there is no data attached to the photo (unlike this photo which is watermarked). You call a few photographers to see if they know who shot the photo and come up empty. So you decide to publish the photo.

In the real world you could be arrested for stealing a car. In the upcoming Bizarro World of Photography, if you do an unspecified "good faith search" for the owner of an image and you can’t find the owner, you can assume you can use the image.

Well the trade associations are at least trying to block this from happening, but it appears as if some form of orphan works legislation will pass.

While the trade associations know how to react to offenses like this they don’t know how to be pro-active and create new workflows and business models in light of industry changes.

For instance . . .

Let’s say that some orphan works bill is passed. Undoubtedly there will have to be a specified means to do some good faith search to find the creator or owner of the copyright. Let’s say that suddenly independent organizations pop up with existing infrastructure to create enormous databases of images. So if a publisher wanted to use this photo of a dog, he would go to a clearinghouse of images and search for “dogs on white backgrounds holding something in mouth” (actually “fingerprinting” technology exists now which allows anyone to upload a photo and have the database find a match). Now the publisher can contact the photographer and work out a deal and the database owner can take a fee for the service. The publishers who are pushing for this legislation could offer to provide seed money to start an independent database.

But let’s take this one step further.

Organizations like the ASMP or SAA (which both just got sizable grants from the Library of Congress for unrelated things) could partner with an organization like the not-for-profit Copyright Clearance Center (which we proposed here last March) to build the database.

And let’s take this one step further . . .

The publisher can’t find the photographer of the dog photo. But while searching the Orphan Database, the photo editor finds one close enough, with ownership information. The database just became a stock agent of some sort, by linking the photo editor with a new photographer and suitable photo.

We just created a new revenue stream for photographers from the orphan works legislation.

Will photographers ever let this happen?