OK. This means war.
For many months now I’ve been considering a return to that relic of the 90s, watermarking. As of ten minutes ago, that consideration became a steel-hard resolve. Allow me to tell you why. Because you’ll want to know.
When I learned about Google Image Search, I decided to drop in one of my images to see how it worked. Within seconds, I’d found that image being used without permission or payment on a perfume website. The owner was easy to find, but her breathtaking ignorance was something else. ‘If I hadn’t found it on Twitter, I’d have contacted you to ask permission’, she bleated.
What? And ‘what?’ again? I reminded her in idiot-proof terms that it is illegal to steal an image and use it without either asking or paying for it. She knew, she said, because ‘I’m an illustration major myself so I know this is how you earn your living’.
Quite. Idiot indeed. She took the image down immediately, with an apology, but nonetheless I was mad, and more than a little unnerved. But she had, presumably and if this is even on her radar, relied upon this being an ‘orphaned work’ and thus usable by anyone.
Orphaned what? Quick time-travel back to 2008. We went to the ICON Illustration Conference in NYC where I drew a piece on their creative wall about the horror that was the then-proposed Orphan Works Act.
Cute name, but the meaning of it is far from cute:
‘An orphan work is a copyrighted work for which the copyright owner cannot be contacted. In some cases, only the name of its creator or copyright owner is known, and no other information can be established. A work can become an orphan because the copyright owner is unaware of their ownership, or the copyright owner has died, or the copyright owner is a company that has gone out of business, and it is not possible to establish to whom ownership of the copyright has passed. In other cases, the author and origin of a work simply cannot be determined, even after great diligence has been conducted.’
‘Diligence’ in this case can mean a simple internet search. The woman in my case didn’t even try – she just took her chances. But if she had, she would have been considered to have carried out a search of due diligence.
Why is this important? Well, in the US anyone can use an image they’ve found if they have satisfied themselves that although it has a copyright holder, they cannot be traced. How they do this can be as rudimentary as a web search. The Orphan Works Act required anyone who wants to be sure of protecting their work to register in, in a huge central register (the Copyright Act 0f 1976 meant that this requirement to register your copyright in an actual step, introduced in the 1909 Copyright Act, had been eliminated). In 2008 the Orphan Works Bill was introduced by three Members of the U.S. House of Representatives overseeing intellectual property legislation – it attempted to attach further conditions to try to protect both the copyright of those people whose images were theirs but difficult to locate, and the rights of what are termed ‘good faith’ users – academics, writers and librarians perhaps who wish to use an image ‘in good faith’ and for which they can find no owner despite an ‘exhaustive’ search. The bill was fought hard in that country by creative bodies, organisations and lobbyists, and eventually the bill died having never passed the House of Representatives (although it was passed by the Senate).
Fast forward back to 2013. Having been sent link to a paper cutting artist’s website, I viewed the work it and right at the top of the page was a piece of new work under which were the words ‘Just need to work out how to make this more ‘me’ (nabbed the design)’.
Yep. She said that. Either foolish and very naive or horribly arrogant, her rather derivative works are being sold at reasonable sums of cash. Horrorstruck at the brevity with which the statement was made? I was.
All of this is occurring against a backdrop of ever-more common examples of illustrators’ work being appropriated by clothing, bag, jewellery and other companies for use on their goods. A trickle of angry posts and blogs with assorted side-by-side ‘My Original vs Their Copy‘ jpegs are appearing in my daily read, sometimes with triumphant outcomes, sometimes not, but always accompanied by a nervous weariness that, very soon I, along with my creative comrades, will need to dust off our weaponised illo-suits and come out fighting, our intellectual property hiding behind us like terrified bear cubs in need of legislative or self-protection from the tedious but increasing horrors of the ‘nabbing’ of images.
I thought I had left watermarking and its associated paranoia behind as a relic of the late 1990s, never having to add that extra layer of type over an image, relieved at the welcome spontanaeity of ‘jpeg > upload > share’.
So this morning came as a shock. With great stealth, and without it having appeared on any news programme, our lifelong, ancient, inherent right to our own automatically-generated copyright, which has existed as long as time itself, was altered by our own coalition government, courtesy if itsEnterprise and Regulatory Reform Act, nauseatingly-nicknamed Instagram Act. Were you consulted? No. I wasn’t either. Gory detail here.
Here is the key paragraph from the clearest article doing the rounds this morning:
‘For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work – the user only needs to perform a “diligent search”. But since this is likely to come up with a blank, they can proceed with impunity. The Act states that a user of a work can act as if they are the owner of the work (which should be you) if they’re given permission to do so by the Secretary of State.’
Which means what, then?
‘In practice, you’ll have two stark choices to prevent being ripped off: remove your work from the internet entirely, or opt-out by registering it. And registration will be on a work-by-work basis.’