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Portions of this column were originally written for the January-February 2013 edition of News Photographer Magazine.

Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.

The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.

May 2013, Volume 119
By Mark Loundy

"In a pinch, any orphan quote can be called a Chinese proverb."

— Keyes Eleventh Rule of Misquotation

The orphan works pandemic has gone international, with the UK as the latest infection nexus. Corporate media interests keep trying to pass a so-called "orphan works" measure, which would allow such works to be used freely and without risk.

Orphan Works An orphan work is one in which the author cannot be found after the user has performed "due diligence" in attempting to locate the author. The problems with this is that not only is there no commonly accepted definition for what constitutes due diligence, but that meta data is commonly stripped out of image files by services such as Facebook and other social media companies. This allows a re-user to claim that they tried, but couldn't find the author.

While there are legitimate reasons to address true orphan works, the ham-handed language in legislation written to-date has been so vague that it has the practical effect of exposing millions of images to what amounts to legalized theft.

The British Parliament has not yet passed the measure, but such acts approved by the government are rarely voted down. According the Photo This & That blog, the last time such a measure failed to get parliamentary approval was in 1979.

The last time an orphan works bill came before the US congress was in 2008. It was passed by the Senate but died in the House of Representatives. Ironically, the bill was penned by Vermont Senator Patrick Leahy, himself an avid photographer who has spoken at an NPPA event and is a strong supporter of a federal journalists shield law.

Although there is currently no similar measure pending in the US, the idea keeps coming back like Freddy Krueger in the "Nightmare on Elm Street" movies.

The Good
Bullet Not a peep this month. That is definitely not Good.

The Bad
Bullet The Smithsonian's Air & Space magazine contest — rights grab.

The Ugly
Bullet Beyoncé, for barring photojournalists from her concerts and then spoon-feeding PR images to the news services. The singer was ticked-off about images from her Super Bowl performance, so she's decided to eliminate visual journalism from her shows.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.

  • USA Today Sports Images is learning the difference between a professional photographer and folks who just happen to own a camera. In two email messages sent to his photographers on May 7th, USATSI Chief Operating Officer Bob Rosato had to take his people back to the basics, instructing them about elementary issues such as camera sharpening settings and workflow issues such as always editing a copy — not an original. Rosato wrote that quality issues had cost the service commercial sales. There was more, but I'm embarrassed for them that the experience level of their shooter corps has apparently fallen so low.
  • Reuters has apparently run through their freelance budget much faster than expected this year due to the number of big news stories and the company is tightening its belt — or rather they're asking their freelance contributors to tighten their belts. I'm seeing reports of baseball assignment rates being lowered from $250 down to $200 and that weather photographers, accustomed to being paid for three-days on a tornado chase, are getting only one day.
  • After losing the legal war with photographer Daniel Morel, AFP and Getty are launching what might be one last skirmish. Federal District Judge Alison Nathan ruled that the two agencies illegally used Morel's images from the earthquake in Haiti. Now they are contending that since they are being accused of participating in the infringements together, they should only have to pay one penalty. Morel's attorneys disagreed. Trial is set for September.