Saturday, March 28, 2009

C-Registry - The Discourse Continues

If readers of this blog found me promoting (or having) a photo contest, and in the T&C was language akin to "you grant perpetually all rights for free when you enter..." or some variation thereof, not a single person would believe me if my excuse was "oh, the lawyers wrote that up, I didn't see it, I'll change it now...". And, you should fully doubt that mea culpa. Why? Because rights and contracts and the analysis thereof is what I do when I am not making pictures.

On a comparative note, if someone were a chronic car thief, should we applaud when he just steals from department stores? The argument would be "oh, but he's so much better now..." when what he is doing is still theft.

So, it is with the perspective of the above to scenarios that the changes that C-Registry has made are dubious. The people who run C-Registry have been around a long time in this business. A LONG TIME. The notion that they didn't know what they were doing or, as they note in their own words as citied in an AMSP Member Update - "In retrospect, we were overly zealous with our marketing language" is just not passing muster. I submit that they knew EXACTLY what they were doing with that language, and are only now pulling back because they were called out on it. Further, it has been suggested that they have made changes to their offering to answer the concerns put forth, yet there are many other points of serious concern that remain.

So, let's continue the discourse. If C-Registry is truly committed to helping photographers, rather than lining their own pockets, straight-forward and complete answers to the following questions need to be answered.

Question 1

Until recently, your terms and conditions included express provisions allowing you to license registered images at your discretion. You have explained elsewhere that this was a mistake and that you regret including those provisions. You have removed the provisions but left in provisions that allow you to add those terms back into your terms & conditions and any other terms at any time, at your sole discretion. Setting that aside, please explain the intended purpose of those licensing provisions clearly and succinctly.

(Continued after the Jump)

Question 2
Just to set the record straight, please answer these yes or no. After answering each of the questions yes or no, you can provide as much detail as you wish.
In the event that c-registry identifies an instance of a registered photograph appearing on a web site, are there any circumstances under which c-registry would require a fee, royalty, special paid subscription/membership level or other compensation to c-registry for:
  1. The act of discovering the use? Yes or No.
  2. The act of informing the rights holder of any of the details of the use? Yes or no.
  3. The act of mediating a dispute between the rights holder and the image user. Yes or No.
  4. The act of billing or invoicing for the image user a fee or other payment related to the use of the image. Yes or No.
  5. The act of facilitating a grant of license between the rights holder and the image user. Yes or No.
  6. The granting of a license on behalf of the rights holder? Yes or No.
If you answered yes to any of the above, please describe.
Question 3
While there is currently no mention of image licensing on your site, are there any circumstances under which you might later solicit registered photographers to offer their work for stock licensing via any stock licensing platform or site? If so, describe.
Question 4
After editing the copy of your site recently, all of the references to “orphan work” were changed to “work of unknown origin.” As of today, c-registry is advising image users that “If an author has not claimed copyright for that work and is unknown by any other means, it could be considered “A Work Of Unknown Origin” at that moment in time. In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was “unclaimed in The Copyright Registry” at the time.”
  1. What is the meaning of “work of unknown origin?”
  2. Does the designation of “work of unknown origin” have any bearing on a user’s ability to proceed with usage of an image?
  3. C-registry is soliciting image users to buy certificates that a photograph is a work of unknown origin because it is not registered on c-registry. What possible purpose might such a certificate serve as of today?
Question 5
In your revised terms & conditions, c-registry requires that image users agree to the following terms: “In the event that the copyright owner or creator of CONTENT are unknown or are known but can't be found an “A Work Of Unknown Origin,” YOU agree that: YOU will pay a reasonable licensing fee for your use or publication of A Work Of Unknown Origin, negotiated in good faith, should the rightsholder of that CONTENT become known to you during or after use or publication, and…” If the CONTENT is A Work Of Unknown Origin used editorially, use or publication should bear a credit line that indicates the creator name if reasonably known or source of the CONTENT if reasonably known.” While the terms also require that users obey the law,
  1. Why do you include this provision at this time? It leaves infringers with the impression that they may proceed to use work provided that if the rights holder appears, the infringer will negotiate in good faith. Isn’t it illegal to proceed with the use of a work without the rights holder’s permission, even after a failed search at c-registry?
  2. What is the purpose of requiring that infringers print a credit line that informs others where the work can be found?
On "Reclaiming"
On the C-Registry home page, after all the edits, their marketing language remains alarmist, and misleading, when they write - "Reclaiming your works online is critical...Take action today and begin reclaiming your works."

Reclaiming? defines "reclaim" as:

Reclaim: to claim or demand the return or restoration of, as a right, possession, etc.

The problem is - there is nothing to "reclaim." While the copyright will always be yours unless you expressedly transfer it, no language in any version of the orphan works bills that have been proposed would allow a copyright holder, once a work has been deemed an "orphan", to stop the work from continuing to be used in whatever manner it was after it was deemed an "orphan." There is no mechanism to "demand the return or restoration of, as a right, possession". The use of the word "reclaim" is, at best, misleading.

One of the most important notes to make here, is that if C-Registry is a success and is purchased by a major stock agency or media company, the operation of the registry will fall under the control of a single stakeholder, and nothing in its charter or other language suggests that they would not do this, and that should scare people.

Your Turn
There are, no doubt, other questions out there that remain, so feel free to pose them in the comments below if I have missed something. I await full and complete answers to the above questions, without any spin.

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Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Anonymous said...

I don't have any problem with c-registry lining their pockets.

That's what business is all about, right?

However, the issue with c-registry is their launch with deceptive marketing tactics and claims that actually harm, not help photographers.

Who knows how many thousands of image users have already visited c-registry's site and read that if they don't find an image in c-registry, that image is "considered an orphan at that point in time" and may be used without the permission of the rights holder.

Who knows how many thousands of photographers read and believed all of the blatantly incorrect information on c-registry's site, and left with the impression that the orphan works bill had been passed, and that they must claim or reclaim their copyright to protect it.

It is good that c-registry has edited the text on their site to eliminate many of the issues. However, their site still tells infringers that if a search fails, they should buy a certificate from c-registry. This implies that the infringer should go ahead and use the image if they can't find the owner. The terms & conditions on the site still tell infringers that if they use an image without permission of the rights holder, they should at least provide a photo credit and name the location at which the image is available (that's just crazy). The terms on the site still tell infringers that if they use an image without permission, they should be willing to negotiate in good faith and pay a reasonable fee, IF the photographer ever finds them. That's crazy as well. Using an image without permission of the rights holder is illegal, even if an infringer is willing to license it later. There is virtually no reason for c-registry to include that type of language in their terms at this time.

Their pitch to infringers to sell them certificates should clearly indicate that the certificates hold not value and cannot be used as evidence or as an excuse for infringement. Like this:

"If your search fails, and if you buy a certificate from c-registry, you may not use the photograph without receiving a grant of license from the rights holder. The fact that you have searched c-registry and not found the rights holder merely indicates that the rights holder has not yet chosen to register that photograph with c-registry, and does not mean that the photograph is a orphan work or a work of unknown origin under the laws of any country. The rights holder may have chosen to register one or more other registries, or many have chosen not to register the work, as registration is not required by law. The fact that a photograph is not registered with this c-registry or any other registry does not provide you with any rights under any law in the USA or in any country. The use of a photograph without permission of the rights holder is copyright infringement, even if you provide a photo credit, name the source of the photo, even if you are willing to later negotiate in good faith and pay fees to the rights holder, and even if you buy a certificate from us (which is just a record of your search, has no legal value). C-registry advises that you respect the work of all rights holders and that you never make use of any photograph without first obtaining a grant of license from the rights holder."

Something like that, in black & white and not buried in the faq or terms & conditions, would be the honest approach, not yet taken by c-registry. Further, if there is a click through agreement for purchasing a certificate, that agreement should require the infringer to check a box to agree specifically with something like

"I will not proceed to make any use of the photograph without advance permission and license from the rights holder."

In other words, c-registry should only sell certificates to users who expressly promise not to infringe. Otherwise, c-registry is aiding and abetting copyright infringement. I could and will sue c-registry for contributory infringement if an infringer presents me with a c-registry certificate as an excuse for infringement.

Jim Mitchell said...

John your questions should clear things up and are a good way for Cregistry to move ahead with its plans in an honest and transparent manner.

The most important question for me and others considering registering images at c-registry is -

Will c-registry be involved in image licensing?

In their recent statements they claim that they will not use the images to seed their stock licensing business - but they have never answered the above question completely or directly.

Because Cregistry seems to be doing all that it can to avoid answering the question, I expect that the answer is "YES."

Unless the answer is an unqualified and unconditional "NO", Cegistry is just another underhanded attempt at launching a stock licensing platform by leveraging the hysteria surrounding the orphan works bills to sucker photographers into registering photographs, and we should all expect that Cregistry plans to launch a service allowing image users to buy licenses from rights holders via Cregistry in advance of use of an image, with cregistry receiving a cut of the fee, probably at a much lower royalty rate than offered by competing stock licensing platforms.

Also cregistry is likely to take a piece of fees or settlements paid by infringers when infringements are located by cregistry.

Even if this will be an opt-in service to photographers, the fact that cregistry is hiding it from photographers and their trade associations and hiding their stock licensing plans behind a "copyright registry" is a major problem.

I read that ASMP endorsed cregistry and has been working with them to fix the troublesome issues.

Can someone from ASMP provide the answer, since cregistry appears to be unwilling to do so? Has ASMP asked cregistry if they plan to launch a licensing option for photographers, and if the answer is yes, why c-registry is posing as a registry, not a stock agency?

Now c-registry has launched a blog as a marketing vehicle to attempt some damage control. It appears that they are killing/censoring any critical comments submitted. For the time being, it’s just PR fluff. If that is not the case, I invite cregistry to copy this comment in its entirety and post it and answer it directly on their blog, as well as posting the answer here.

Anonymous said...

I think the appropriate Attorney Generals Office should be contacted as ths could be officially concidered a scam given the clear misrepresentation of the US Goverment Copyright law.

Anonymous said...

Even the website ending with .US smells fishy. imho

Anonymous said...

looks like they've answered all the questions in their blog. look at this

Anonymous said...

i just read the posts on their blog, which are just adspeak and do not answer even one of john's questions, as far as i can see. what's happened is that APA issued an alert calling attention to numerous issues, some of which were non-issues, and some of which were entirely valid. Then ASMP, which apparently endorsed and recommended c-registry as a membership benefit without reading the terms and without taking necessary steps to protect its members' interests, stepped in to attempt to save face by mopping up all of the very real problems that APA had identified. The net result is that the trade orgs have very effectively, if unknowingly and unwillingly, tag teamed c-registry to force them to eliminate much of the harmful and deceiptful language from their site. I find it unbelievable that ASMP has endorsed c-registry yet again, without first verifying c-registry's plans to ensure that c-registry isn't going to spring a bait & switch on asmp members and the entire photo community by launching a licensing service that works in conjuction with the image registry. it is the trade associations' job to investigate such issues and take steps to protect its members, right? John's 5 current questions are exactly the type of questions that asmp should have asked c-registry before endorsing it, twice.

if that doesn't happen, and if c-registry later announces a licensing option, the community should band together and pull all of their images from the registry.

if c-registry will not be launching a licensing service, they oughta step forward and make that promise to the community.

is it sn image registry, or is it a wolf in sheeps clothing? Photographers have seen enough wolves, in my opinion.

I just read the leslie burns blog on this, and she has endorsed c-registry just based on the fact that they were willing to correct all of the scam language on their site - even though she apparently has no idea what c-registry's plans are.

I think that it is irresponsible for anyone to send photographers to c-registry without first confirming wthat c-registry is not going to spring a currently hidden licensing offer on them after first posing as an image registry.

John Harrington said...

Anonymous -

Actually, C-Registry answered most of the APA questions, but the questions I have posed here, as well as on the ASMP and APA Listservs remain unanswered, and need full and complete answers, regardless of the forum the answers are made in.

-- John

Anonymous said...

After reading Randy's extensive responses on the APA list, it does not look like he is putting together some evil plan to steal everyone's photos. It looks like a valuable service. (Although I'm not sure how successful it will be).

Why don't you just call him up and see if you can get your answers, and then post back here if you have further concerns.

Anonymous said...

I'm sure Randy Taylor, just like Google, simply wants to help.

Anonymous said...

Why would any professional ask someone else to respond to the professional community on his or her behalf. Answer: They would not.

If Randy doesn't feel comfortable answering these questions himself, in writting, I think we can all draw our own conclusions as to why.

However, if he really is trying to help and develope an honest establishment, wild horses wouldn't stop him from responding imho.

It's a question of respect. How much does he respect his customer base. If thats what we are to him.

Anonymous said...

I would like to see a video interview with these same questions posed in John's studio if he has one and then post it here for us to view.

Anonymous said...

Here is how honest businesses frame their terms of use.

Very clear and concise without the tell tale gaps or vagueities. Honesty rings true to the eyes and ears imho.

If your left with unanswered questions...leave....FAST.

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