Accidental Orphans . . .
By
Ron Rovtar
Stock Asylum Managing Editor
March 17, 2006
No one needs to tell Leif Skoogfors how frustrating it might be to have
a photograph declared an "orphan work." In a way, it already
has happened to the Philadelphia area photographer, even without passage
of new orphan works legislation now being considered by two committees
of the U.S. Congress.
In fact, Skoogfors says he has been spending far too much time trying to track down hundreds illegal uses of an image he made at an anti-war rally in 1970.
Skoogfors' situation shows just how hard it can be to enforce copyrights even without the proposed legislation that would make it easier for all kinds of image users to publish copyrighted materials when the copyright owner cannot be found or is simply unknown. If the orphan works proposal passes, such stories could become much more common for visual artists who already have trouble keeping track of their work, which is easily copied in this digital age. (For additional information about the orphan works proposal, click here.)
 Leif Skoogfors made this photo of Jane Fonda in 1970. A youthful John Kerry can be seen in the background. Since the 2004 presidential election, Skoogfors has been battling hundreds of copyright infringements involving this image, which can be licensed legally from Corbis. ( © Leif Skoogfors). |
For Skoogfors, who is chairman of the Stock Artists Alliance legal committee, the problem arose during the 2004 presidential election when some foes of candidate John Kerry discovered an image Skoogfors made of Jane Fonda at a rally against the Vietnam War in Valley Forge, PA.
Out-of-focus behind Fonda sits a youthful John Kerry. Kerry served in Vietnam, but came home disillusioned about the war. The image can be licensed legally from Corbis, but that meant nothing to breathless partisans eager to damage the reputation of the Democratic candidate
Skoogfors said he witnessed no interaction between the actress and the future U.S. Senator from Massachusetts.
"During the election it was picked up by a small group of extreme political activists and distributed to create a tie between Kerry and Fonda, who is hated by many veterans groups," said Skoogfors.
Though Kerry eventually lost the election, the image remains widely circulated today. Typing in "Jane Fonda John Kerry" at Google Images recently yielded 22 versions of Skoogfors' image in the first three pages returned by the internet search engine. Some were unaltered reproductions while others had arrows pointing to Kerry or circles drawn around the senator's face. Skoogfors said he has found more than 400 copyright infringements of the image simply by checking online search engines like Google.
Even more to the point of the orphan works proposal is the fact that Skoogfors' name and contact information has been stripped from the metadata of some of the images.
Metadata is information about a digital document that travels with the document in an attached file. Unfortunately, anyone who knows much about Photoshop can remove metadata in a few seconds, making it easy to claim that the origin of the image is unknown. Images of unknown origin can be declared "orphans" under the legislation proposed by the U.S. Copyright Office. Publishers of orphan works would be protected from large financial judgments under the proposal.
Skoogfors noted he recently found the image on flickr, an image-sharing site owned by Yahoo. Metadata was intact, indicating the image had been licensed to the Washington Times, but the image was still available for general download.
"Even when you do everything right, you can wind up losing your image," Skoogfors said.
Considering his experience with the Fonda/Kerry image, it is easy to understand why the photographer is not happy about the orphan works proposal.
"If they couldn't find any weapons of mass destruction in Iraq, they certainly have managed to create one for the creative community in the United States," said Skoogfors.
"I Have an excellent attorney that has agreed to take on about 12 of the most grievous infringers," said Skoogfors. "But, I've put in way too much time on this. It has hurt my business. It has distracted me from what I do best, which is to be a creative artist."
For The Stock Asylum's special section on orphan works, click here.
