In common with all Internet photography specialists I have written extensively on the recent Jay Maisel – Andy Baio legal controversy. And like other leading copyright experts I have concluded that a world in which entrepreneurs cannot use other people’s work for free is truly fucktarded™.

In posts such as “Photographer Jay Maisel Extorts [Opinion] $32500 Out Of Andy Baio”, “Photographer Jay Maisel Ties Andy Baio To A Chair And Pours Gasoline Over Him”, and “Photographer Jay Maisel Hires Tony Soprano To Put Andy Baio’s Head In A Vice” I revealed how one of the world’s wealthiest men plotted in his 70 room mansion to crush the dreams of a starving young artist. I also published the only eyewitness account of how Maisel personally “held his feet over the fire and tormented him and hung him upside down to shake $32,500 out of his pockets” in order to buy new a new couch to match the drapes in that mansion.

I am now shocked and distressed to learn that some readers may have misinterpreted these posts to imply that Mr. Maisel, rather than exercising his legal right to defend the copyright of his life’s work, was engaged in some kind of criminal protection racket. I have further become aware that I may have inadvertently led people to believe that I somehow disapprove of the legal settlement between Mr. Baio and Mr. Maisel.

Nothing could be further from the truth.

On the contrary, as the World’s Fourth Most Influential Photoblogger™, I welcome Mr. Maisel’s defence of his intellectual property, and his insistence on his right to be paid for the use of that property. Why, I myself in the past have campaigned long and hard to be paid with a byline in Forbes magazine.

I also wish to stress that my description of Mr. Maisel as “a hack photographer” and “the worst kind of artist” in no way implies that he fails to measure up to my own high standards. While Mr. Maisel cannot match my 60,000 publications on flickr, I recognise that his 55-year career shooting annual reports, magazine covers, advertising and more for clients worldwide is an accomplishment in its own right.

It is for these reasons that I am delighted to announce that I have now deleted all my previous posts on Mr. Maisel to make space for a permanent exhibition of his work on my blog at its new home in the Utah desert.

It would be entirely wrong to suggest that this sudden reverse ferret is a result of discussions with Messrs Sue, Grabbit and Runne, attorneys at law, or because my employers at Stone & Youngberg have torn me a new asshole.  On the contrary, as I wrote in one of the deleted posts, “as a blogger disclosure is important”; my attempt to hide the posts and pretend that none of this ever happened is a clear demonstration of my commitment to disclosure and transparency. It is also entirely consistent with what Mr. Baio himself has described as my questionable grasp of copyright law and leaps of logic, and my history of publicity seeking by making vicious and unfounded attacks that are subsequently withdrawn and replaced by a grovelling apology.

A few years ago somebody played a cruel joke on Flickr’s DeleteMe group, where a photo is posted and self-appointed critics decide whether to keep or trash the image. A picture of a cyclist was posted and condemnation was quick. “Soft”, “grey”, “blurry” were among the criticisms as the judges decided the picture was, well, a bit crap. Then it was revealed that the photographer was Henri Cartier-Bresson.

The incident was a small but telling illustration of a modern truth: there are now two photographic worlds, one on Earth and one in cyberspace, each largely unaware of the other’s existence. The last two weeks have provided a spectacular demonstration of what happens when those two worlds collide.

Down on Earth Jay Maisel is a very big name photographer. With a 55 year career, multiple high-end awards and work scattered in museums and private collections around the world, Maisel seems a reasonable candidate for that much overused term “legend”.

Likewise, up in cyberspace, Thomas Hawk is a very big name photographer. With his stated ambition to publish a million images before he dies, and tens of thousands of followers across various social media, he was recently named 4th most influential photographer blogger. Yet a lot of professional photographers are now scratching their heads and asking: who the hell is Thomas Hawk? I know this because last week I ran a poll at a mailing list for pro photographers. The poll had two questions: firstly, who here knows who Thomas Hawk is? And secondly, do you know who he really is? The pros did spectacularly badly. Of over a thousand only two had even heard of Hawk; none could answer the second question.

So in the web photo world Hawk is a very big deal; yet back on earth it’s as if he doesn’t exist. And there’s a very good reason for this: Thomas Hawk doesn’t exist.

Andrew Peterson by Thomas Hawk
Andrew Peterson by Thomas Hawk, used under Creative Commons license
The name Thomas Hawk is a pseudonym employed by one Andrew Peterson, a stockbroker at San Francisco investment company Stone & Youngberg. Peterson / Hawk’s stated rationale for the pseudonym is that US financial regulations mean that if he were to publish his website under his real name everything he writes would have to be vetted by his bosses. On recent evidence this would be a very good idea, for Peterson / Hawk is one very angry stockbroker.

Peterson / Hawk gets angry at a lot of things. Apple. Canon. His phone supplier. His phone handset. He gets periodically very angry at Flickr. But recently he’s mostly been angry – very, very angry indeed – with Jay Maisel.

Ostensibly his fury is over Maisel’s action against tech entrepreneur Andy Baio, who heisted Maisel’s photo of Miles Davis and settled for the alleged infringement out of court to the tune of $32,500. Baio is a reasonably wealthy young man, having sold to Yahoo in 2005; figures aren’t available, but pitch between 10 and 20 million dollars and you’ll be in the ballpark.

However that hasn’t stopped Peterson / Hawk and others from painting the story as “millionaire photographer crushes poor young artist”, and with very predictable consequences. Maisel had to pull his Facebook page after it was inundated with abuse from Baio supporters, but it didn’t stop there. Anywhere Maisel’s name appeared on the web was considered fair game for attack; juvenile memes were produced smearing the photographer; and Peterson / Hawk published two lengthy and legally questionable blogs savaging Maisel – “a hack photographer” – in just about every way imaginable.

Art inspired by Andy Baio
Finally, and inevitably given that Baio’s supporters were circulating Maisel’s address, some self-appointed freetard revolutionaries plastered the front of the photographer’s home with posters of the infringed image and the slogan “all art is theft”. This seems to have unnerved at least a few of Baio’s supporters, one describing it as a “lynch mob”. That description, however, is not strictly accurate. Lynch mobs usually have some ideological basis, motivated by political, religious or racial hatred. In contrast the mob at Maisel’s house were paid to be there by Baio supporters: in the organisers’ own words it was a “contract art hit”.

The ferocity of the Peterson / Hawk attacks led some to wonder what the stockbroker’s motives really were. When Scott Kelby claimed on the Grid that Peterson / Hawk and Baio were former roommates that seemed to answer the question: Peterson / Hawk was standing up for an old friend. But that only led to further speculation of a business relationship: had Peterson / Hawk, stockbroker, been giving investment advice to his room-mate Baio on what to do with the millions the latter had made on his sale of to Yahoo? Eventually Peterson / Hawk moved to deny all of this, claiming to have met Baio only once at a press conference, and accusing Kelby of libel.

In fact the real reason Peterson / Hawk got so worked up over the Baio-Maisel affair is much simpler. In March last year Peterson / Hawk decided to get his rocks off – photographically speaking – at the World Erotic Art Museum in Florida. Neglecting to mention to the museum what he was up to, he posted some 350 photos of museum exhibits to his Flickr account. The World Erotic Art Museum was not amused by this unexpected exposure, and hit Flickr with a DMCA takedown notice; Flickr duly removed the images from Peterson / Hawk’s account in December.

When Baio was accused of copyright infringement by Maisel the former consulted lawyers. But Peterson / Hawk is more of a direct action kind of guy; so in his case with the World Erotic Art Museum he launched a blog barrage accusing the museum of fraud. This genius move backfired very badly; the museum regarded the blog posts as libelous, and on January 10th filed suit against Peterson / Hawk in Miami federal court for $2M damages plus attorney fees and litigation costs. Shortly afterward Peterson / Hawk caved in, reached an out of court agreement with the museum, removed the allegations of fraud from his blog, and replaced the offending Flickr set with an abject apology so humiliating it’s practically a Private Eye parody.

So it’s no surprise that Peterson / Hawk should side with Baio against Maisel, a dispute that the stockbroker repeatedly characterised as an example of a wealthy individual or corporation exploiting intellectual property law to crush the little guy: in a very real sense, he could feel Baio’s pain. But it seems Peterson / Hawk has learned little from his recent brush with the intellectual property and libel laws. Here are just a few of Peterson / Hawk’s recent descriptions of Maisel:


“Maisel’s a dick.”

“He’s the worst sort of artist who tries to inflict pain on other artists.”

“He held his feet over the fire and tormented him and hung him upside down to shake $32,500 out of his pockets.”

“I doubt Spielberg’s as big as an prick as Maisel.”

“Apparently thinking it’s bad to extort $32,500 out of someone gets you blackballed from the high-powered Zack Arias / Jay Maisel elite blue ribbon good old boys photography club.”

“People are not extorted by Disney in the same way that Andy was extorted here. They wouldn’t risk tarnishing their reputation in quite the same way that Maisel has tarnished his.”

Talking of reputation, as one of the country’s most respected investment firms Peterson / Hawk’s employers Stone & Youngberg take certain principles seriously. Here’s what they have to say on their website:

“Integrity — At Stone & Youngberg, integrity is paramount to maintaining our corporate culture and our reputation in the industry. We expect our employees to meet the highest standards in both their professional and personal lives.”

Does anyone else see a massive disconnect between the behaviour Stone & Youngberg publicly expect from their employees, and that delivered by this particular employee? Worse, Peterson / Hawk’s website is registered to Stone & Youngberg’s corporate headquarters. To the casual observer – or a lawyer – this makes it appear that the company is associated with and endorses the content of the Peterson / Hawk site.

In one sense the antics of Baio, and Peterson / Hawk especially, are just funny. Despite his supporters’ description of him as an artist, Baio was unable to produce the 8bit version of Maisel’s image himself – he had to pay someone to do so. Likewise the rent-a-mob who turned up to decorate Maisel’s home were paid to do the job by Baio’s supporters. As for Peterson / Hawk’s claims as an artist: well, you be the judge.

But let’s be clear: Andy Baio, a man with a history of breaking and encouraging others to break intellectual property laws, made a considerable amount of money selling his intellectual property to Yahoo under those same laws. His account of his dispute with Jay Maisel provided an ammunition dump for those who wished to attack the photographer for defending his work under the same laws that allowed Baio to profit. And Andrew Peterson / Thomas Hawk has gleefully raided that dump to conduct a campaign of defamation and vilification against Maisel, neglecting to disclose his own recent history of being caught out for copyright infringement and libel.

There’s nothing very funny about an 80-year-old photographer being abused and defamed across the web for the supposed crime of protecting his own life’s work. And there’s definitely nothing funny about a bunch of paid thugs committing criminal damage to the photographer’s home.

Baio – irony alert! – doesn’t allow comments on his own blog that set this witch-hunt in progress. It would take a very brave person to venture into the comments at Peterson / Hawk’s blog, where anyone who supports Maisel – and the law – risks branding as a fascist and a “fucktard”. And unlike Maisel, both Baio and Peterson / Hawk keep their home addresses secret. That really only leaves one place to respond:

Stone & Youngberg
One Ferry Building
San Francisco, CA 94111
(800) 447-8663
(1-415) 445-2300

Their email contact form is here.

St Petersburg, Russia, 31/05/2005. The interior of the Catherine Palace in the surburb of Pushkin.
The freetard idea of a photographer's home. Photo © Jeremy Nicholl 2011. All Rights Reserved.

A long time ago in an analogue universe far, far away, a young man called Jay Maisel photographed Miles Davis in a New York club. The picture became the cover of Davis’ Kind Of Blue, probably the biggest selling jazz album of all time, and one of Maisel’s most famous images.

In 2009 another young man, Andy Baio, created Kind Of Bloop, a chiptune version of the Davis classic. He also used a pixel art version of Maisel’s image, “the only thing that made sense for an 8-bit tribute to Kind of Blue”. Baio was careful to obtain and pay for all the permissions needed to reproduce the music. However he didn’t bother to even call Maisel over the photography: you see, he felt he could just take it.

In early 2010 Maisel found the 8bit version of his image, moved straight to no. 6 of the ten rules of US copyright infringement, and called his lawyers. Seven months later Baio settled out of court for $32,500 plus legal fees: last week he told his side of the story on his blog.

At first sight it’s hard not to feel just a little sorry for Baio. $32.5K is hardly chump change; his account was reasoned and devoid of the rants that were to come from others; and since his story was apparently vetted by Maisel’s attorneys we can reasonably assume it to be factually accurate.

On the other hand a cynic – or a realist – might suspect that Baio posted his account as an act of revenge on Maisel. He clearly had some inkling of the possible repercussions of his post when he wrote:

“I understand you may have strong feelings about this issue, but please don’t harass him publicly or privately. Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We’re all humans here. Be cool.”

But one would have to be exceptionally naive or an internet virgin – Baio is neither – not to foresee the inevitable response to Baio’s post: “rich old bastard with Rottweiler lawyers uses copyright law to crush starving young artist” is a wet-dream story for the freetard lobby. And sure enough, zombie-like, the freetards quickly took the bait, laying siege to the photographer’s Facebook page and elsewhere with their own interpretation of being cool and human:

“Jay Maisel is a dick.”

“The photographer is a huge fucking asshole.”

“Copyright troll.”

“Maisel seems like an incredibly litigious, nasty fuck of a man.”

“The photographer seems to be a smug, loaded, asshole.”

“Jay Maisel is a scumbag.”

“Christ, what an asshole.”

“Deep-pocketed litigious scumbag.”

“Go die in a fire.”

“The best part is the photographer’s Facebook page”, crowed one of the usual anonymous cowards; “he’s getting pounded.” These weren’t just cyber threats either: people were encouraged to “knock on the door of his house” – a map was provided – to “voice one’s disapproval”. Wannabe thugs were reassured that they were safe from accusations of defamation because of Maisel’s public status.

Apart from potty-mouthed insults the freetard fury featured the usual hopeless misunderstandings of copyright law, hilariously self-important threats to “never support Maisel’s work again” and comically confident assertions that the supposed scandal would kill the photographer’s career. And some were just obvious outright lies: “Just told this on good authority, ‘Jay Maisel once told me he made much more money from lawsuits than from photography.’”

Much fuel for the mob’s ire was provided by Maisel’s perceived wealth versus Baio’s apparent poverty. Everyone seized on Maisel’s ownership of a “72 room New York mansion”, which contrasted nicely with the question put by a friend of Baio: “Should a multi-millionaire like Maisel keep my friend Andy’s wonderful young son from having a college fund?”

Of course the relative financial standing of Baio and Maisel has no bearing whatsoever on the validity or otherwise of Maisel’s claim of copyright infringement. But since Baios’s supporters chose to make that a central issue it’s worth asking how much truth is in the story portrayed. Answer: not much.

While it’s certainly true that a big fat Manhattan property would be nice to have, the much-touted and envied “72 room New York mansion” conjured up Gatsby-style images of sweeping staircases and gilded ballrooms with a staff to match. In contrast Maisel’s mansion apparently features graffiti strewn outside walls and a tramp in the doorway: it’s actually an abandoned bank the photographer bought in 1965 for $102,000. In other words, Maisel hasn’t been on a Leibowitz-style real estate spree: he simply bought a dump nobody else wanted almost half a century ago and got lucky.

As for Baio, while he’s probably not in the same financial league as Maisel, he’s hardly a pauper. He admits having already paid the settlement out of savings, so contrary to at least one claim, Maisel didn’t “take every penny this kid has”. And he’s an Internet entrepreneur who sold one of his projects to Yahoo; figures aren’t available, but you can bet it was for a lot more than $32.5K. He is also a former Chief Technology Officer of Kickstarter, the crowd-funding project that raised the funds for Kind Of Bloop. If the freetards genuinely wanted to help Baio – rather than simply beat up on an old guy – they could easily use Kickstarter to raise further funds to reimburse him.

Failing that, two of the mob’s cheerleaders were Cory Doctorow – inevitably – and Thomas Hawk. Doctorow surely has some change to spare from his lecture tours; Hawk, despite his Internet persona as a photographer, is in reality a stockbroker at Stone & Youngberg, a career he admits makes him a comfortable living. Between the two of them they could probably easily reimburse Baio without batting an eyelid. But of course that wouldn’t be nearly as much fun as Internet grandstanding and branding Maisel an extortionist, a dick and a torturer.

In the words of one of his more literate supporters: “Andy Baio is a respected entrepreneur, artist, and writer, who’s collaborated with some of the most cutting-edge artists in the digital sphere while also chronicling their works”. It’s also not the first time he’s had copyright problems. According to the ever reliable Wikipedia:

“Baio often takes a stand against censorship on the Internet by hosting or linking to controversial content which some parties wish to suppress. This ranges from unauthorized mashups and other artwork where parody or fair-use claims are disputed to newsworthy video. When the parody cartoon House of Cosbys was taken down from its original site due to a cease and desist letter from Bill Cosby’s attorney, Baio placed the videos on his own website. Baio later received a similar cease and desist letter but refused to comply, citing fair use and decrying what he termed “a special kind of discrimination against amateur creators on the Internet”.

So far from the starving kid mugged by a copyright troll portrayed by the freetards, Baio appears to be a reasonably well off tech whiz with a history of challenging copyright law as he sees fit. He didn’t take Maisel’s work because he was broke. He didn’t take it because he doesn’t understand intellectual property. He took it because a sense of entitlement told him he could, and a sense of arrogance told him he could get away with it. He was wrong. So who’s the dick now?

Moscow, Russia, 13/06/2011. US Copyright Office registration certificate.
Photo © Jeremy Nicholl 2011. All Rights Reserved.

Some time ago I began registering all my photographs with the US Copyright Office. Like all photographers I’ve witnessed a massive increase of theft of my work in recent years. And like others I’ve found it difficult, if not impossible, to get reasonable compensation for these infringements, especially if the infringer is in a foreign country.

But one country, the US, provides very hefty penalties for copyright theft – so long as the work has been registered prior to the infringement in question. So what would happen if I, a foreigner, registered my work and subsequently found it used without permission in the US? Would US copyright law really provide me with the same protection that it does the country’s own citizens? Last week I got my answer.

In January this year I found one of my photos on a website owned by a major US media company. In February I engaged attorney Barbara Hoffman of the Hoffman Law Firm to handle the matter. Last week the infringer paid a substantial settlement. As is normal in such settlements no party admitted liability. But media organisations don’t usually write five figure cheques without good reason: draw your own conclusions.

However only a tiny percentage of US photographers bother to register their images; virtually no foreign photographers do so. Two reasons are usually given: that the registration process is too complex, and that the cost is too high. Neither of these is true. Since the US Copyright Office began accepting online registrations the process has become both simpler and cheaper. While the system appears intimidating at first, that’s simply because it allows for the registration of so many different kinds of creative works. Concentrate only what applies to photographers, and the process becomes much clearer; and the registration process has pop-up guide notes at each stage. For the truly challenged, both Photoshelter and the Photo Attorney have detailed guides with blow-by-blow screenshots of actual registrations. How hard can it be?

As for cost, online registration is $35 a time, you can register an unlimited number of images in a batch for that fee, and you have 90 days from the moment of exposure to register new work. So simply register your photographs in batches 5 times a year. Cost per annum for complete US copyright protection, $175. That doesn’t sound expensive to me: how much did you say you spent on that new lens?

Foreign photographers like to give a third reason for not registering copyright in the US: why should they have to pay for protection they supposedly already have under the Berne Copyright Convention when the US is a signatory to that convention? As an argument of principle this has some validity, but in practical terms it’s nonsense. You don’t have to register your images: but you’ll be the loser if you don’t.

Based on my experience I can’t think of any good reason why photographers, US or otherwise, should not register their work with the US Copyright Office. Every case is different, and there’s no such thing as 100% protection. But follow these ten rules and you will almost certainly be able to collect substantial damages from any US website or publisher who infringes your copyright.

1. Register your images at the US Copyright Office. The country may be a Berne signatory, but in practice the USA has a dual copyright system: major protection and zero protection. Unregistered images get the latter: lacking the option for punitive damages and legal expenses it’s financially impractical to chase infringers, and they know it. Registered images carry the potential for $150,000 compensation per infringement plus legal costs: so what’s to think about? And make sure you register every frame. As photographers it’s tempting to think that only the “best” images get stolen. But while some images are more likely to be stolen than others the truth is that you have no idea what might catch a thief’s eye. The image in my case was a simple shot of a crowded beach: there are millions like it on the web. But mine came high in a Google search, fitted what the searcher was looking for, so he took it. If an image is good enough for you to keep then it’s good enough for someone, somewhere, to want to steal: so register it.

2. Make your copyright information visible. It’s unnecessary to actually watermark images: a strong watermark wrecks an image, a weak one is easily removed, and neither provides greater legal protection than copyright information immediately adjacent to the image. Your infringer, like mine, will almost certainly try to claim to be unaware of the copyright status of a stolen image. But the placement of my copyright information immediately below my image meant I was easily able to prove that it was impossible for my infringer to have downloaded the image without having first seen that information – even though the image was lifted from Google, not my website.

3. Google Alerts is your friend. Ever hear the one about the burglar who left his driver’s license at the scene of the crime? Incredible as it may seem, my infringing site ran my byline with the stolen image. Perhaps they felt they were doing me favour. Oddly enough, they were: since I have a Google Alert set up for my name Google delivered the culprit handcuffed to my inbox the morning following the infringement.

4. Grab all the evidence. Make screen grabs of the infringing site obviously; but there is a lot more you can do. Download the actual page so you have the source code. Make grabs of your own site displaying the copyright information, and any other site where the image may be viewed: Google search results for example. Check the image metadata on the infringing site: if metadata has been removed – and it will have been – that’s a further offence. Remember: every piece of information is ammunition for the lawyer you’re about to hire.

5. Don’t contact the infringer directly. Did they contact you before heisting your property? So why would you call to warn them you’re on their trail? Contact them and the best they’re likely to offer is to take your image down, as if they’re doing you a favour: don’t expect an offer of serious compensation. Even if you convince them to pay, the sum is unlikely to be much more than a valid license would have cost: in which case you’ve just taught them that infringement is worth the risk, since the punishment is no more than the cost of being honest. You need to get their attention and you need to get them to take this seriously. You need to…

6. Hire a lawyer. There are plenty of good intellectual property attorneys in the US, and they’re eager for your business. Better yet, many will take a solid case on a contingency agreement for a percentage of any settlement; so long as you’ve registered the image correctly you can often take your pick. I chose to work with Barbara Hoffman, who I rather obviously recommend, but there are plenty of other options.

7. There’s no such thing as a small infringement. My infringed image was used 468 pixels wide on a site I’d never heard of before. It would be easy to be dismissive, but fortunately the law feels different and so should you. The substantial penalties for infringement under US copyright law are meant as a deterrent. When somebody ignores that deterrent and proceeds to steal anyway, he’s essentially telling the law he doesn’t GAF: the law doesn’t like being talked to like that. So what looks like a small infringement to you may seem a much bigger offence to the law: your infringement may not have many pixels, but it could be worth a lot of dollars.

8. Your small-time infringer may be a bigger player than you think. At a casual glance my infringer was a cuddly-looking blog: indeed its sister site was once caught heisting an image from flickr, and when the owner complained people told him “lighten up, it’s just a blog”. But a few seconds research revealed that both sites are owned by one of the world’s largest media companies, which bought my infringer’s site a few years ago. The price? Ten million dollars. And that for a site so cheap that I caught it swiping images from iStock rather than pay the $1 asking price.

9. Be forensic. Most infringing sites are serial offenders, but your infringer will naturally try to claim that your infringement is an isolated case: your job is to prove the opposite. My Google Alerts experience shows infringers to be none too bright, and fortunately they’re also lazy: once they find an easy infringement method they repeat it over and over. That in turn produces a pattern that makes it easy to find further infringements on their site. Identifying repeated infringements demolishes any “isolated case” defence and shows the site infringes as a matter of custom and practice: should your case go to court the defence will have a hard time explaining this. Once I’d identified my infringer’s work pattern it only took a few hours to find 50 verifiable infringements on their site, at which point I got bored: game over for the defence.

10. If you have an agent don’t expect them to protect your copyright. My infringer’s site was awash with what appeared to me clear-cut and easily verifiable infringements. The surprise was that the vast majority of the images were either owned or represented by the biggest picture agencies on the planet. So either they were unable to find the infringements or unwilling or unable to pursue the infringer. Either way, if you sleep soundly at night in the belief that your big agent’s lawyers are watching out for infringements of your work, I have some very bad news for you.

There are also some rules for the other players in all this. For Old Media: do your due diligence on that hot new media property you’re about to shell out millions for. Do they have the same understanding and respect for the value of intellectual property that you do? If not you could be buying a copyright infringement time bomb.

And New Media: despite what the pied pipers of Freetardia may have led you to believe, all our internet is not free for you to help yourself as you think fit. The law applies to you just as much as anyone else. And the technology that has made it easy for you to leech off the creativity of others is developing to make it easier to catch you. Steal and you will be caught. Get caught and it will cost you.

Orphan work courtesy Professor Ian Hargreaves
“Who has won the copyright wars?” asked Rory Cellan-Jones last week on the eve of publication of the Hargreaves Intellectual Property Review. Judging by the comments on Cellan-Jones’ blog and elsewhere the answer is: “nobody”.

Only a rather hysterical John Naughton in the Observer and freetard shill John Bradwell in the New Scientist gushed with unreserved enthusiasm at the review’s conclusions. Some indication of the depth of Bradwell’s grasp of IP matters is his assertion that within five minutes of the 130 page report being published “Hargreaves had pulled off the impossible: pleasing everyone.”

In fact Hargreaves ended up pleasing not very many people at all. Prime Minister David Cameron, announcing the review last autumn, made plain that he expected it to recommend US-style fair use legislation, but as predicted Hargreaves failed to deliver. Likewise Google, who Cameron’s government had shacked up with, will have been disappointed with the rejection of fair use.

But the most displeased, inevitably, were photographers. As predicted here, and described by the Register as “throwing photographers under a bus”, Hargreaves proposed legislation for the commercial use of so-called orphan works, those whose owners cannot be immediately identified.

If this all sounds familiar that’s because it is. UK OW legislation was first proposed in the Gowers Report of 2005 and subsequently dropped. Then the Labour government tried to slip legislation through in last year’s Digital Economy Act, only to be humiliatingly rebuffed after a series of embarrassing blunders. Now, zombie-like, Hargreaves resuscitates the theme. Apparently the motto of the UK OW lobby is: “if at first you don’t succeed, try, try to steal again”.

The proposal Hargreaves has come up with is the half-bright cousin of US copyright law. In the US there is in reality a two tier copyright system: while all images are copyrighted at the click of the shutter, only those that are subsequently registered with the US Copyright Office receive effective protection through the provision of heavy statutory damages for infringement. Anyone attempting to pursue infringement of an unregistered image can generally only rely on the generosity of the infringer to offer compensation: US lawyers invariably require an image to be registered before they consider handling a case.

Likewise, Hargreaves envisages a two-tier UK system: a Digital Copyright Exchange in which copyright owners could register their images, with all remaining unregistered images regarded as orphans. The difference from the US system would be that the registered images would receive little or no more protection than they do now – there is no suggestion of US-style punitive damages for infringement of registered images; and orphaned images – inevitably the vast majority – could be licensed for a “nominal sum”, probably £1.

The flaw at the heart of this is so glaringly obvious it’s hard to believe that Hargreaves was unable to see it; nonetheless it’s worth spelling out. Many UK professional photographers will register with the DCE in a desperate attempt to protect their copyright; most UK amateurs won’t and will get comprehensively ripped off. But by far the biggest losers will be non-UK photographers, both professional and amateur. The chances of foreign photographers – most of whom will not even be aware of the DCE – registering their work will be essentially zero. Result: the work of all non-UK photographers is automatically orphaned within the UK. It’s not hard to predict the reaction of foreign IP owners to such behaviour.

Perhaps all this should come as no surprise, for Hargreaves’ ignorance of international law in general, and the Berne Copyright  Convention in particular, was cruelly exposed when he tried to defend his report in the comments section of his blog[Irony alert!  Hargreaves’ blog is headed by – you guessed – a genuine metadata-free orphan image of the Professor.] Challenged that his proposals fall foul of Berne, to which the UK is a signatory, Hargreaves fudged and claimed this was not the case. One commentator, Simon Crofts, promptly demolished that defence by quoting the relevant Berne legislation. But then when it comes to discussing photography and the law Crofts has a considerable advantage over Hargreaves, who is neither a photographer nor a lawyer: Crofts is both. Helpfully, Crofts has expanded his comments into a blog piece that will probably come to be regarded as the definitive analysis of Hargreaves’ OW botch.

Ironically, for someone charged with presenting proposals to make digital Britain fit for a wired-up world, Hargreaves has managed to do the opposite with his OW scheme. As it stands the proposal to orphan any image not on the register will turn the UK into an island of state-sponsored copyright theft, and will inevitably invite legal challenges from foreign photographers, most especially those in the US.

It’s far too early to say whether Hargreaves’ scheme will ever get into law, but the chances, fortunately, are not good. “Doomed to fail”, was the verdict of Barlow Robbins technology and media lawyer Brett Farrell in the Daily Telegraph:

“Intellectual property laws are effectively underpinned throughout the world by international treaty arrangements. Well intentioned as it may be, England wanting to set up its own one-stop-shop for collective licensing is simply doomed to fail without the global community buying into it. One only needs to look to the European Union’s attempt to have the music collecting societies set up European-wide licensing and one stop shop licensing bodies. A one-stop-shop for licensing, or digital exchange will not work.”

So we may not yet know who the Hargreaves winners are, but if lawyers like Crofts and Farrell are right it’s clear who the loser is: Hargreaves himself.

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