PhotoshopNews.com
Mar 9, 2006

Urgent Call for Your Action on Orphan Works

From ASMP

The problem
The U.S. Copyright Office issued its report on Orphan Works only a couple of weeks ago. The end of that report contained proposed language for an amendment to the Copyright Act. That proposal is now being fast-tracked in Washington with a good chance of passage before the end of this Session. In my opinion, if that language is enacted in its current form, it will be the worst thing that has happened to independent photographers and other independent visual artists since Work Made for Hire contracts.

Orphan works are basically works whose copyright owners cannot be located. The term “Orphan Works” is really a dangerously misleading phrase. It makes it sound as if it includes only a few works that are not valued enough by their creators to warrant taking care of them. That may be true for owners of many kinds of copyrights. However, the reality is that for independent photographers and illustrators, the majority of your published photographs may well become Orphan Works. The reason for that is that, unlike just about every other category of copyrighted works, photographs and illustrations are typically published without any copyright notice or credit to the photographer or illustrator. The one exception to that has traditionally been editorial uses, but even there the trend seems to be away from providing credit lines. As more and more photographs are published on the Internet, credits become even rarer. Worse, even if you registered your photographs at the Copyright Office, there is no mechanism for identifying you or your photograph or for locating you through those records, if the user does not know your name.

The full text of the Copyright Office proposal is in this PDF document; the rationale and the draft language for a bill is the very last section. (For your convenience, the draft language is reproduced here.) The supporting documents — appendices, public comments, roundtable transcripts — are on the Orphan Works page of the Copyright Office site.

Under the proposed legislation, a person or other entity who wants to use a copyrighted work is required to make only a “good faith, reasonably diligent search” to locate the copyright owner. If, after making such a search, the user is unable to locate the copyright owner, he/she/it gets an almost free license to use the work. If the copyright owner never comes forward, the user gets to use the work for free. Even if the copyright owner discovers the use and demands payment, the MOST the copyright owner can get is “reasonable compensation,” i.e. a reasonable license fee for the use actually made. There is NO possibility of statutory damages or attorneys’ fees, even if the work was registered before the use was made without your permission.

Wait, it gets worse: If the copyright owner discovers the use and demands payment, “where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.”

The fact that the potential compensation is so low presents a fatal impediment to collection: if you discover one of your works being used and demand only your reasonable licensing fee, but the person refuses to pay, you cannot afford to sue to collect the minimal amount to which you are entitled. Without the possibility of an award of attorneys’ fees or statutory damages, no lawyer would take your case; and if he or she did, you would end up paying far more legal fees than you could possibly collect.

The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn’t have a published credit. Yes, people have to contact publishers to try to identify and locate you, but if that doesn’t produce your name and/or contact information for any reason, they may be entitled to a free, or almost free, pass.

The full text of the Copyright Office proposal is in this PDF document; the rationale and the draft language for a bill is the very last section. (For your convenience, the draft language is reproduced here.) The supporting documents — appendices, public comments, roundtable transcripts — are on the Orphan Works page of the Copyright Office site.

What we are doing
ASMP has formed a coalition of organizations which I am representing in connection with Orphan Works that includes the Graphic Artists Guild, the National Press Photographers Association, the Stock Artists Alliance, Advertising Photographers of America, Editorial Photographers, Professional Photographers of America, the Illustrators Partnership of America (which carries with it approximately 40 other organizations), and the Picture Archive Council of America (with their General Counsel Nancy Wolff). Some of the other photographers organizations that we have approached have not yet responded to us, so that list may grow.

Canadian photographers also have a considerable stake in the matter. The Canadian Association of Photographers and Illustrators in Communications (CAPIC) is working to educate its members about this threat.

Overseas photographers are also concerned with this issue. In the UK, the Association of Photographers Ltd (AOP), British Association of Picture Libraries and Agencies (BAPLA), British Institute of Professional Photography, British Photographers’ Liaison Committee, Chartered Institute of Journalists, Design and Artists Copyright Society, National Union of Journalists, and Picture Researchers Association have joined the coalition. On the Continent, Pyramide Europe, Union des Photographers Créateurs (France), Association of Professional Photographers of Spain, Association of Swedish Professional Photographers and Finnfoto (Finland) have joined. Although their political clout is necessarily indirect, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the U.S. market, but it could set up pressure for similar laws in other countries.

ASMP is working on the Hill to try to change this proposed legislation. We are also exploring possible non-legislative fixes. However, what we really need is letters from as many ASMP members as possible.

I try not to ask for member help unless it is really necessary because I don’t want our members to appear to legislators to be people who simply write on every issue, no matter how important or unimportant it might be. Right now, I am pleading with you to take action. This is a big one, gang, and we really need to work together here.

Thank you for your help,
Victor S. Perlman
General Counsel and Managing Director
American Society of Media Photographers, Inc. (ASMP)
150 North Second Street Philadelphia, PA 19106-1912
Phone: 215-451-ASMP Ext. 1207
Fax: 215-451-0880
E-mail: perlman@asmp.org
URL: http://www.asmp.org

ASMP has posted a draft leter and has a list of Senate Judiciary Committee members on this special announcement page.

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