Quick: who is the most famous author in the English language? You probably answered “Shakespeare” — and most people would agree with you. However, it’s well known that Shakespeare (whose own identity remains something of a mystery) “borrowed” most of his plots from lesser known writers. Shakespeare’s genius was to reshape contemporary or historical events, legends, and stories and rephrase them in rich imagery.
The Shakespeare of Stock Photography
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. Corbis’ Gates may be leading the way.
You see, Corbis, Getty and Jupiter — the Big Three stock agencies — hold a hidden trump card each time they buy up another stock photo agency. Each time they make an acquisition, 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.
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 Three 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.
The Kaleidoscope Treatment
As we move into the Digital Age of photography, this new genre of photo is emerging. We see prototypes of it in print ads and especially on TV.
I call this the Kaleidoscope Strategy. In terms of arithmetic, it goes like this: Any one of the Big Three 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 Three have 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.
No doubt, court cases will toss the Kaleidoscope Strategy back and forth for years to come. 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 Copyright Law Adapt?
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 Three can conceivably more than double or triple their inventory of images. New images could be made on demand — not by photographers but by in-house experts in the art of digital manipulation.
It’s likely that the Big Three 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 Three may fight to maintain copyright interpretation the way most agencies and photo buyers 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.
[tags]stock photography, copyright[/tags]