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BY ROHN ENGH

Your legislators in Congress have been tussling with the Copyright Law, attempting to bring it up to the 21st century. They find the Internet presents revision problems much more complex than the revisions that went into the 1978 revision of the Copyright Law.

Especially important to editorial stock photographers is the question: “On the information highway, which pictures need a model release and which ones don’t?”

There are two kinds of stock photographs, editorial and commercial:

1. The truly editorial picture, taken by a photojournalist, or “made” by a photographer to depict something that happened or could have happened and used as editorial illustration.
    
2. The commercial photograph, usually using professional models to depict (in most cases) cliche situations (such as the pretty child romping through a wheat field with a bright red kite and a well-groomed pet dog), and used for advertising or promotion.

Generally speaking, editorial photos do not need a model release if they are used to “inform and to educate” (in contrast to being used to endorse or promote a commercial product).

When photos are used on the Internet, it presents problems for our First Amendment right (Freedom of the Press). What happens if someone “borrows” an editorial picture from the Web, that is not model-released, and uses it for commercial purposes?

“It would return us to the Dark Ages…”

Is the photographer liable, the agency, the proprietary online service, e.g., Yahoo!, AOL, etc.? Or what happens if someone borrows part of a picture and marries it with two or three other pictures, some that are model-released and others that are not? And what happens if all of this takes place in a foreign country?

It might be easy to say, “All pictures on the Internet must have a model release.”

That’s a bureaucrat’s dream.

It would solve one problem, but it would create others by diminishing the free flow of information. It would shrivel the global concept of the Internet and return it to the Dark Ages.

Since the Internet knows no roadblocks — to curtail picture use on the Web would limit the free flow of information. The dilemma means that we might have to give up some of our proprietary rights to preserve the free flow of information in our society.

Yet if the Internet picture-use goes unregulated, it could foster an unprecedented demand for pictures, especially editorial pictures that “depict something that has happened or could have happened.”

As far as tracking down “misuse” of our pictures on the highway, we can expect (hope) that refined security software will come up with answers. Currently the cost to find and convict an infringer carries a price tag much higher than the usual court-ordered monetary recompense. Commercial companies will often catch and convict an infringer in order to set an example to would-be infringers.

Even with the use of sophisticated detection software such as PicScout, infringement will continue, much like stealing in brick and mortar retail stores.

The Copyright Law of the future, in order to be effective and enforced, will have to have a tinge of moral law built into it.

There’s good news for the editorial stock photographer, however. In our part of the industry where generic commercial images are seldom used, an infringement of an editorial photo is easy to detect because of its uniqueness. More importantly, editorial photobuyers have rarely been known to “steal” an image — there’s no monetary or other advantage to them.

Rohn Engh is director of PhotoSource International, the stock photography online meeting place, and publisher of PhotoStockNotes. He is also the author of Sell & Resell Your Photos: Learn How to Sell Your Pictures Worldwide.