8 CONGRESS MAY GUT COPYRIGHT
March 7, 2006
A bill is being "fast tracked" through the U.S. Congress that would remove much of the protection for unauthorized use of images and potentially convert the majority of published images to "Orphan Works" status. The whole idea of copyright is to grant creators an exclusive right, for a limited time, to control the use of their work and to reap the financial benefit from its use. That concept is being seriously threatened by the proposed "Orphan Works" legislation that has been issued by the U.S. Copyright Office.
It is urgent that that all photographers write to members of the Senate and House Judiciary Committees expressing their concern and explaining why the proposed legislation will seriously affect their livelihood. At this time there is no bill number because the members and staffers are still drafting the initial language. A draft letter for you to adapt is available at:
The bill affects all types of copyrightable work, but in our industry the principle proponents of change are major publishers, libraries and educational institutions. They want the right, when they cannot easily locate an image owner with whom to negotiate rights, to go ahead and use the image anyway.
These people claim that the current copyright law imposes inappropriate burdens on users, including subsequent creators, of works for which the copyright owner cannot be located. The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. According to them, if no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be. The problem is that no one has developed an effective system for the copyright owner to claim his or her ownership in a way that enables potential user to know instantly who the owner is and how to locate him. Consequently, the owner is lose all protection.
The proposed remedies seem to be weighted so heavily in favor of "the public" that creators will no longer have any protection under copyright. (See the language of the proposed bill: http://www.asmp.org/news/spec2006/orphan_language.php.
The entire stock photography industry depends on a robust
copyright licensing and enforcement regime. Loosen the restrictions and unauthorized use will skyrocket. Copying and making unauthorized use of photos has been a problem for a long time, but the present wording for the bill makes it easy for anyone finding an image that does not have the copyright owners name clearly attached to claim that it is an "orphan work" and use it for any purpose without fear of penalty. All the user is required to do is claim that he made a "good faith, reasonably diligent search" for the owner. Good faith and reasonably diligent aren't defined.
If the copyright owner eventually comes forward and demands payment the MOST he or she can get is "reasonable compensation" and the user, not the seller, gets to define what is reasonable.
There is NO possibility of statutory damages or attorneys' fees, even if the work was registered before the use was made. This makes it virtually impossible to bring legal action for copyright infringement in most cases.
How likely is unauthorized use? In early 2004 PicScout started marketing its Image-Tracker software that searches the Internet for use of images stored in its online catalog. This software is able to find images that have been cropped, flipped or colorized as well as exact matches. In early tests using the catalogs of some major photo agencies PicScout discovered that over 90% of business uses (small uses made by individuals were disregarded) were unauthorized. In half of these cases use was being made beyond the terms of a legitimate license and in the other half no license of any kind had ever been negotiated. And this is just Internet uses. It doesn't take into account all of the unauthorized uses made in printed products. Currently, most of the major agencies and portals that are in the business of licensing rights to images use the PicScout service to track unauthorized uses and significant numbers of such uses are being identified daily.
The following are links to important sites to learn more about this proposal.
For more general information about the proposal go to: http://www.copyright.gov/orphan/
For a summary report by Marybeth Peters, Register of Copyrights, on the issues that need to be considered by the members of Congress when developing the legislation go to:
For the language of the proposed bill: http://www.asmp.org/news/spec2006/orphan_language.php
For a letter to photographers from Victor Perlman, ASMP Managing Director and General
Counsel, along with a draft letter to send to members of Congress and a list of addresses for the members of the Senate and House Judiciary Committees go to: http://www.asmp.org/orphanworks
For the SAA's orphan works blog and a demonstration of a group of "non-orphan" pictures for which finding the copyright holder would be very difficult go to the following links.
Every photographer is encouraged to write his or her representative concerning this issue!!