Using Photos for derivative works?

[Erno]

Hi, this is my first post/question, so please forgive any nubie errors I may make.
Hopefully this is not so obvious that many of you will be sighing in frustrated resignation, however, having trawled the web and found... this site, thankfully, I'm hoping I'll have some sympathetic ears. I'm a visual artist (painter, digital manipulator etc) and have recently been messing about with pictures I've found online and turning them into vector based illustrations, usually involving 2 colours, which I then manipulate further. My current dilemma is concerning one which I'd like to publish, of Lemmy (Motorhead fame). It's obviously a derivative work, and is clearly taken from the photograph in question. Unfortunately trying to track down the publisher is proving a nightmare, in fact I've found it impossible. Trawling through 46 pages of Getty Images' archive of Lemmy has proved useless, while the site that is offering the image as wallpaper art is uncontactable - even though they have a 'contact' link, which goes to a blank page. Another site used the same image as a dedication piece to commemorate his passing, also uncontactable. I'd like to get permission, but in the event of not being able to, what next?? Do I just go ahead and publish and wait for an 'infringement' complaint to come my way?
This question is relevant to several other similar works I'm working on, some of people long gone, but the copyright owners would no doubt want to be informed of any possible commercial interests (I'm looking at T-Shirt printing) etc Thanks in advance for any help.

[AndyJ]

Hi Erno,

It's good to see that you acknowledge that somewhere there is a photographer who owns the copyright in the Lemmy image, whose permission is probably going to be required. Many people don't! They just assume that if something is on the internet, it's fair game. I assume that as an artist yourself, you understand and value copyright as a means of protecting your work from being copied and exploited by others.

Once you have conducted a diligent search for the copyright owner and met with no success, the next step would be to apply for an orphan works licence to use the image, which you can get from the government's Intellectual Property Office. This would indemnify you in the event that the copyright owner turns up later and wants recompense for the use of his image.

However from what you have said I don't think you have yet met the full diligent search criteria. I assume you have already done a reverse image search using Google or Tineye or similar sites, and so the next step would be to use the search facility provided by the British Association of Picture Libraries and Agencies, in the hope that one of their members will be acting on behalf of the photographer. I would also advise you to download the IPO's guidance (in pdf) for conducting a diligent search for still visual art. Then, once all the recommended search avenues have proved fruitless you can probably consider applying for an orphan works licence. Much the same procedure will apply to any other photographs you would like to use, and with appropriate modifications, to other, non-photographic, artwork.

I hope this is of use to you.

[Fatty]

Short advice: Don't do it, don't use this image without the permission of the copyright holder.

Long advice: while there is nothing in the wording of the legislation that precludes orphan work licencing from applying to modern works, it was primarily intended to allow museums to reproduce dusty ancient photographs unearthed from their cellars. From the sound of it what you have here is very probably a professional photograph from a current practising professional with which said professional has a reasonable expectation of earning his living. Concert photographers go to a lot of trouble and expense to shoot their images and you can be sure they will be hopping mad if you licence your image as an Orphan Work. You can be reasonably sure that such an image will be out their being offered for sale on the photographers website and or photo agents website. If you licence it as an Orphan Work there is a very high likelihood you would face legal action by a hoping mad photographer who would challenge your diligent search in detail and way well challenge the whole basis of Orphan Works licencing which if they issued a licence for an obviously professional modern work would almost certainly fall foul of international law.

Your only hope of using the image without risk is to find the photographer / copyright holder and ask him or her. I would hazard a wild guess that very likely they will either say yes for a shed load of money or a complete refusal at any price, which leads us nicely back to my short advice above

[AndyJ]

I entirely agree with Fatty that under all normal circumstances there should be no question of a 'modern' photograph being eligible for licensing under the Orphan Works scheme, as there are plenty of resources for tracking down the copyright owner or author during the dilligent search phase, especially in the case of a photograph such as the one featured in this thread. Use of the scheme to 'steal' photographs was the fear of many professional photographers who lobbied against orphan works licensing* being included in, first, the Digital Economy Act 2010, where they were successful, and subsequently, the Enterprise and Regulatory Reform Act 2013 where they weren't. One such lobbying group was Stop43, who launched a particularly vigourous campaign which was at times marred by exaggeration.
It is significant that the search guidance for still images published by the IPO for those considering orphan licensing is the most comprehensive of all the guides, and was compiled with assistance from those representing photographers. It is also significant that based on the information currently available, no copyright owners have come forward to claim their works during the 3 years the scheme has been operating.

* they also campaigned against Extended Collective Licensing, but that does not concern us here.