Orphan Works and Error Costs

This is a brief observation about the central role that error costs must play in any discussion of orphan works policy. I made it at the Berkeley orphan works conference last month. By popular request (okay, by one person’s request), I’m putting it online here.

The first, and most obvious, errors are those made by copyright owners whose works become orphaned. Works don’t end up orphaned unless there’s been a mistake by the copyright owner. They make mistakes about whether they’re copyright owners, about whether they’re findable, and about whether there’s a potential audience interested in their works.

But these errors interact with errors made by potential users of the works. If users knew with certainty whether copyright owners would emerge and object to possible uses, there’d be no orphan works problem, because every search would lead either to genuine negotiations or to use without fear of suit. False negatives that expose users to the risk of being sued and copyright owners to mistaken uses; false positives chill use without benefitting copyright owners.

And finally, there are error costs in the judicial system, which magnify the effects of errors at the previous two stages. They award remedies more than sufficient to compensate copyright owners, or they fail to award sufficient remedies. And the same problems face any system for dealing with orphan works: it could mistakenly declare that works are orphan when they’re not, or vice versa, and that searches were diligent when they weren’t, or vice-versa.

The point is that the ubiquity of errors isn’t just an incidental feature of the orphan works debate: it’s the defining reality that causes there to be an orphan works problem at all, and with which any response to the problem must grapple.

James, your assumption that “Works don’t end up orphaned unless there’s been a mistake by the copyright owner” may well apply for published books which hold a copyright notice and are easily traceable at the Copyright Office, but it most certainly does not apply for photography, illustration and various other visual arts.

Even contemporary photographs often appear without any indentifying copyright info. The works may be registered with the Copyright Office but the deposits there are not searchable so it is not possible to find out from them who holds the copyright.

This underlies the great concerns of the professional photography community when the initial Orphan WOrks legislation was introduced and is a much more profound practical and theoretical issue in the debate.

David Sanger:

I’m curious about the actual economic impact of the issue which concerns you. Is it common for you to commercially license the same image to two or more distinct users?

Of course, the real solution is for the Copyright Office to get its act together and make it possible to do image searches.

Successful commercial stock photographs are indeed licensed many many times for similar as well as different usages (eg. magazine interior, book cover, website, product packaging). Licensing fees are generally in proportion to the value of the media placement; a national billboard advertisement would thus be much more expensive than a small web usage.

The concern for Orphan Works legislation is that a contemporary image might be classified as an orphan because the potential user cannot identify the copyright owner (or might not try very hard).

Much of the discussion of copyright issues assumes that it is possible to tell whether a contemporary work is copyright and to identify the copyright owner, but that is really only true for books, films and recorded music.

Digitizing and making searchable the historical Copyright Office deposits would be a massive task, not easily accomplished. And of course there are many many more unregistered works.

Successful [emphasis mine] commercial stock photographs are indeed licensed many many times for similar as well as different usages (eg. magazine interior, book cover, website, product packaging).
Your post gives some interesting information, but you don’t really answer my question, so I will try to sharpen it: what percentage of photographs which end up being licensed are licensed “many many times”? What is the average number of licenses issued per photograph for the population of photographs which have been licensed for at least one use?

Agencies keep that data very close to their chest, Ron, so much information is anecdotal from photographers’ experience. Reports vary tremendously from collection to collection and from photographer to photographer.

One agency that reports total volume of sales/downloads is iStockphoto. A quick search on “china” images returns 98K images and 80% have been downloaded 5+ times, and the top over 6200 times.

More upscale agencies like Getty have fewer licenses for much higher prices. An image may sit online for 5 years and then be licensed for $15K. Generally, though, if an image is good it will be licensed more than one time.

So to answer your question, an image which has only been license one time would be an anomaly.

As for the economic impact, for an individual image for a photographer the license could be a $20 license or a $20,000 license. For the industry the answer depends on the number of contemporary images that get mistakenly orphaned, which depends on how diligent the searches are, and how “findable” the images are.

What that likely means in practice, I think, is some kind of return to formalities, plus a massive searchable database, so that images of commercial concern can readily be identified as such.