Advance Notes:  The way the Copyright Law is written and currently interpreted, it’s easier than ever to legally combine parts of several digital images to make an entirely new image.  The Big 3 (Getty, Corbis, and Jupiter) have the resources to employ this as a standard procedure.

            The race is still on between the three giant stock photo agencies, CORBIS, GETTY IMAGES, and JUPITER IMAGES.  The three have just about pulled it off. They own the rights to a major portion of the commercial stock photography in the world.

Like the view under the microscope of the ever-expanding organism dividing and reproducing itself, the Big 3 present a macro view of how the world of commercial stock photography is expanding. And it’s not through photographers tramping the globe, taking more photos. Instead it’s due to an incestuous technique (like cloning sheep) that the Digital Age has given birth to.

The Big 3 hold this hidden trump card each time they buy up another stock photo agency:

 Each time they acquire a new stock agency, they gain certain electronic rights for that agency’s photos. They also take steps to gain the right to digitally combine those images with other images in their files, by use of a waiver clause in their contracts with photographers. Typical is the Getty contract, in section 106A (see this at http://www.photosource.com/106A.html) subsection (a) e “Transfer and Waiver.” Photographers who are not aware of what they are signing can inadvertently waive the attributions and integrity rights to a single photo or group of photos.

The mathematics of this process are ingenious. Not only do the Big 3 acquire new companies and new images, but an exponential expansion of certain of those images, whose copyright can become their property, according to current Copyright interpretation.

As we move into the Digital Age of photography, this new genre of photo is emerging.  It has not arrived on  main-street-digital yet -- but we see prototypes of it in print ads and especially on TV.

I call this the Kaleidoscope Strategy. (Remember the tube toy you used to raise to the sky and then marveled at the changing myriad images as you turned the tube?)  In terms of arithmetic, it goes like this: Any one of The Big 3 select five of their waivered pictures, digitize them, combine elements from the five into a variety of 25 new pictures, each substantially different from the original (green sky on this one, a small tree from that one, a vintage automobile from this one, etc.) and presto! You have a completely different mood, expression, and feeling to each new photo –and none are recognizable as any of the five original pictures.

Photographers who have signed contracts with the Big 3, signed in good faith expecting their pictures to continue to belong to them.  Their original contracts may discuss not altering their original photos, but never mention extracting parts of an image to produce a new image of separate copyright. Some “work for hire” contracts, for example, stipulate “we retain usage rights in any medium now known or hereinafter developed for no additional payment.” As you can see, the photographer loses control of his/her picture when it is combined with parts of other photographers’ images.

CAN THE COURTS HELP?

No doubt court cases will toss the Kaleidoscope Strategy back and forth for years to come. The U.S. Copyright Law is a balance of interests: the user, the creator, and the publisher. In the end, those in judicial command who interpret the Copyright Law, will probably decree that it would interfere with “creativity” to disallow the process of combining images to make new images, in the spirit of how Picasso and other artists would combine images and items to make a collage or sculpture.

 

WILL BILL GATES BECOME HISTORY’S MOST FAMOUS PHOTOGRAPHER? Quick –who is the most famous author in the English language? You probably answered “Shakespeare.” Most people would agree with you. However, it’s well known that Shakespeare (named by some to be the 17th Earl of  Oxford) “borrowed” most of his plots from lesser known writers. “Everything has been said; men have been thinking for seven thousand years, so it’s too late;” --so said a 17th century French satirist. It’s not the job of writers to say anything new or original, but to rework old forms and ideas. Shakespeare’s genius was to reshape contemporary or historical events, legends, and stories and rephrase them in rich imagery. Is Bill Gates aspiring to rival the Bard by compiling rich particles of photography, and then combining them to make new statements that reflect our present-day culture? Photography, as we know it, is passing through a metamorphosis. Bill Gates may be leading the way. –RE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - “Immature artists imitate; mature artists steal.”  --T.S. Eliot - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Who then owns copyright to these newly authored images?  Whichever one of the Big 3 who created them. According to the Copyright Law, if sufficient "authorship" is invested in the re-making of an image, the copyright of this new composite belongs to the new author. With hundreds of thousands of images to work with, the Big 3 can conceivably more than double or triple their inventory of images. New Age images could be made on demand –not by photographers but by in-house experts in the art of digital manipulation.

Smaller stock houses probably won’t have the expertise, software, or legal resources to pull this off, but we can expect that the Big 3 will.

It’s important to remember that we are not talking about original images being altered, like the example reported in the May 2000 issue of PhotoStockNotes, page 7, where a T-shirt company altered a photographer’s photo, and the result was still recognizable as the original.

            There's a loophole here. If a judge can be shown that there was not "substantial" authorship -- the case (like the one mentioned above) can be won by the photographer.  If "substantial authorship" can be shown -- the judge would not want to stifle creativity.  The photographer would lose.

It’s likely that the Big 3 are currently buying up quality images and combining elements of them to make “new authorship” photos for themselves, as we speak. This means part of your picture may be used, but because of manipulations and enhancements, you may not recognize it. With powerful software, talent, and legal support, the Big 3 may fight to maintain Copyright Law interpretation the way most agencies and photobuyers currently interpret it. This would keep the door open for any waivered image in their files to be eligible for “kaleidoscope treatment.”

So right now, if you don’t want to contribute to the New Media world of kaleidoscopic images, before you sign a contract with a stock photo agency, strike out any portion of the contract that indicates your photo or parts of it might be used in combination with other photos.  If the stock agency balks, insist that you claim a subordinate copyright interest in any digital file (new image) that is created, using any part(s) of any of your images.  Read the fine print.  –RE

Getty Images, Inc., 2101 Fourth Ave., Ste 500, Seattle WA 98121

Corbis, 15395 SE 30^th Pl Ste 300, Bellevue WA 98007-6537

Jupiter Media, 23 Old Kings Highway South, Darien, CT 06820

(Jupiterimages Corporation, 475 Park Avenue South, 4th Floor

New York, NY 10016)

Rohn Engh, veteran stock photographer and best-selling author of “Sell & ReSell Your Photos” and “sellphotos.com,” has helped scores of photographers launch their careers. For access to great information on making money from pictures you like to take, and to receive this free report: “8 Steps to Becoming a Published Photographer,” visit http://www.sellphotos.com