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Tracing photographers

Posted: Sat Jan 20, 2024 5:12 pm
by tackler7
Unidentified photos/photographers, reasonable to suggest they are still in copyright.

An Internet group of experts could probably identify them but only by uploading to the site, therefore breaching copyright.

Is there a way of doing this legally and once identified making further enquiries to legally clear the photographs for publication?

Hope this makes sense? Thank you.

Re: Tracing photographers

Posted: Sun Jan 21, 2024 9:17 am
by AndyJ
Hi tackler,

In the scenario you are referring to, what is the source of the photograph? I'm assuming it is in hardcopy form, say in a magazine or book, or an actual photographic print or slide. Obviously something like that would first need to be scanned or digitally copied in order to search more widely for its author, including using image search techniques. But as you realise, the very act of making a digital copy could amount to infringement, even though its purpose was to locate the person from whom permission to copy could be obtained.

There is no exception that I can think of which would absolutely allow this to be done legally or without risk. Theoretically the first step of scanning the photograph might be covered by the exception for private study or research (Section 29 of the Copyright Designs and Patents Act 1988), but I think that the minute the digital image is made available to the public, the liability arises. This is because the exception requires that the author be given a credit, and by definition, this would not be possible in this case. UK law does qualify the requirement for a credit "No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise." However there is no case law I am aware of which has accepted that this 'exception within an exception' would apply in the circumstances you outline. Therefore I would not recommend relying on Section 29, even though the aim of the overall process is, ultimately, to comply with the need for permission to use the image.

Just for the sake of completeness, I think that EU law (specifically Article 5 2 (b) of the Information Society Directive 2001/29/EC) would almost certainly not allow a practice such as this, because while it acknowledges that private use is permissible, that only occurs if fair compensation has first been paid to the author. The US doctrine of fair use is more flexible than the UK law, but, measured against the standard four factor test, I suspect that the purpose of finding the author (factor 1) would fail to outweigh the economic factors against the use (factor 4), with factors 2 and 3 being neutral.

The overall problem is that the minute anything is put on the internet it is likely to be found by bots and crawlers which are unsophisticated and therefore do not take fair dealing or fair use into account. If the digital image was fed into a reverse photo search engine such as TinEye or Google image search and not actually published on a website, it is less likely to be found by a bot. However that system would rely on there being an original digital copy somewhere on the web from which to identify the author, and excludes your internet group of experts who, I assume, are all human rather than AI.

Re: Tracing photographers

Posted: Sun Jan 21, 2024 1:20 pm
by tackler7
Thank you Andy.

The photographs are prints, I suspect unpublished in newspapers, which would be the main publication outlet.

It appears to be a classic case of Catch 22. Would I be right in thinking that if I showed the original print to someone in person then no breach would have occurred as I am not copying anything?

Re: Tracing photographers

Posted: Sun Jan 21, 2024 4:21 pm
by AndyJ
Hi tackler,

Yes, if you have access to the original (you don't need to own it) then exhibiting it to the public at large, or to just one person, does not infringe copyright, because as you rightly say you have not copied anything.