Enforcing Copyright to an Orphan Work

This post is part two of two posts related to my dad’s stint in photographing Memphis wrestlers during the 1970s.

If you haven’t already, make sure you read part one of this post.

Enforcing Copyright to a (Reclaimed) Orphan Work

At the end of my copyright conversation with my dad, I asked him if he wanted me to reach out to Birch and let him know he was infringing my dad’s copyright for the Jerry “The King” Lawler photograph. My dad was a bit curious, and so was I. Naturally, I decided to see how this would play out. Hold onto your seats because this gets wild…

For starters, I tried to go through Flickr to see how they defined his rights. Let’s just say they don’t make it easy.

First, Flickr operates under the assumption that either you, the account holder, are the rightsholder for the images that you post, or that no intellectual property rights apply to the image in the first place. As part of the terms of their service, they make you agree to indemnify them should that ever turn out to not be the case.

Second, there’s no obvious way to report infringement (and that’s an understatement). I checked the page where the photo was posted. All the way down at the bottom was a link to “Report Abuse”, but that’s it. The phrase “Report Abuse” is not a very intuitive option for seeking out a way to enforce your copyright. Even so, I clicked on it and went through the steps before I was presented with this as an option:

Just below is a link to information on how to file a Notice of Infringement. I clicked on it and got this:

Let’s look at that closer:

I have three options:

1. To complete the online form by clicking on the “this” link
2. By email, after clicking on “Copyright and Intellectual Property Infringement Complaint Form”
3. By sending a letter to Ireland

Both links in option 1 and 2 take me here:

UMMM… wait, what does this mean?!

It means you must create a Yahoo account in order to enforce your rights that are being infringed by someone on one of Yahoo’s websites. That doesn’t seem fair! Further, through the very act of making a Yahoo account, you must submit to its terms – however those terms may be defined. At the moment, I’m not sure how this might affect any future options for enforcement, but it’s definitely something to keep in mind.

If you don’t want to submit to their terms, you can always send a letter to Ireland.

Regardless, I made an account. Only then was I able to report the infringement, and only after providing a significant amount of personal information (sorry, dad). As part of the process, I had to attest to the following:

All of these things are true: the photograph is, in its entirety, a copy of my dad’s copyrighted work; the notification to Yahoo is accurate, he didn’t authorize Birch’s use, and he told me I could “make a stink out of it” if I wanted to – not that I want to, but I did want to see what that would entail.

Finally, Flickr also gives you the option of messaging the account holder directly but, again, only if you create an account (and submit to their terms of use).

I was able to successfully file a claim, so stay tuned to see how that turns out.

Enforcement and the Internet

To be fair, Birch may not have been the first person to upload this photo to the internet. Birch may, in fact, have taken it from someone else. Still, once a work is on the web, it’s really easy for anyone to download it, take a screen shot, or link to it somewhere else online.

I used a reverse Google Image Search to see where else my dad’s photo was on the web. Oh, let me count the places:

And, finally, the original glorious location, on Birch’s Flickr account:

Each of these copies is an orphan. To enforce my dad’s rights, I would have to contact the administrator of each of these websites to get the image removed. Most of them are fan forums for wrestling and are seemingly harmless. Regardless, my dad has enforceable rights, should he choose to pursue them.

What this issue illustrates, however, is how complex copyright can get when it comes to the internet. The photo is an orphan work, and people are using in violation of a rightsholder’s copyright. Each use creates a new copy of the work when it is used on a website and uploaded to a new server. In this case, I found at least 9 examples of this photo in various corners of the internet.

Staying true to my dad’s wishes, I filed a complaint through Flickr’s service. Birch’s use on Flickr the only instance in which anyone is claiming the photo as his own.

I’ll be sure to update this post with developments. In the meantime, I hope you enjoy the wrestling photos as much as I did.