Obstacles to Overcome
It is clear that the stock photo industry is currently subject to theft on an unacceptably large scale, and the problem will likely continue to grow as new digital media and emerging markets mature. Other obstacles need to be addressed. These involve some outdated industry practices, such as the lack of industry-wide standards, as well as external pressures, such as anticipated changes to copyright law.
Lack of Attention to Royalty Free
To our knowledge, RF image licenses are not being tracked. The implication is stark: the majority of all licensing transactions today are made with limited efforts to ensure compliance. Although many more images are being used every day, fewer and fewer of them are being licensed, with the result that we leave money on the table through weak enforcement of licensing agreements. As a result, revenues for photographers and distributors and are not being maximized.
There is no reason why Royalty Free licenses cannot have their limited rights "managed" more proactively. It is possible to challenge anyone using an RF image to produce the license agreement that authorizes the use, and it is possible to prosecute copyright violations.
All licenses for copyrighted images-even those with the broadest use terms-should be made with an expectation of compliance. However, the industry has been notably lax in enforcing even the most basic restrictions on RF licensing.
Issues with Sub-Distribution
The multiple layers of distributors and sub-distributors that market the same image create an additional challenge. SAA's Investigative Shopping Study has been licensing images through sub-distributor sites over the past three years to better understand the royalty reporting and payment process. In our limited sample, we have commonly observed long reporting delays to the primary distributor, especially from international sub-agents.
Moreover, when licenses are reported, information about the end user has, in nearly all cases, been omitted. Without a prompt and transparent reporting of licensing activity, how can infringements be identified? Also, because royalty reports to contributors commonly omit licensing information, we all lose a valuable tool in tracking infringements-artists spotting unauthorized uses of their own images.
There is a deep mutual interest among photographers and distributors: the rights to use photographs become most valuable when those rights are enforced. Without a more concerted, diligent effort, infringements will continue to create unrecoverable theft of income for both. While distributors have stronger commitments (and more dedicated resources) to pursue infringements, their effectiveness is inhibited by the complexity of a distribution system that lacks transparency and coordination among all the involved parties.
Lack of Metadata Use and Preservation
Embedded metadata should be the primary means of storing information in images; this is certainly the best way to prevent images from becoming "orphaned." However, metadata practices within the stock industry are inconsistent. And while photographers are increasingly embedding metadata as part of their workflows, these tags are too often stripped or altered after the image file is passed along to multiple distributors and end-users. The result: too many orphans and a limited ability to enforce copyrights and generate revenues. This challenge is true for both Rights Managed and Royalty Free licenses.
Risks from "Orphan Works" Legislation
Some proposed changes in US copyright law could weaken protections for copyright holders and impair our ability to effectively pursue infringements. Proposed "orphan works" legislation in the U.S., and changes in U.K. law as recommended by the recent Gowers Review, would allow the free use of an image without penalty if the user failed to locate the copyright owner after conducting a "reasonable search." At present, there is no clear standard for what would constitute a "reasonable search," which could encourage infringers and would put additional burdens on copyright holders.
This legislation could severely limit our industry's ability to protect our images from intentional misuse. Many digital files in circulation lack identifying information. Images are typically published without attribution. For those images that become "orphaned"-even despite diligent efforts of the copyright holders and others-we anticipate that there will be a growing number of what are essentially "allowable infringements," including commercial use of images without licenses.
