New Copyright Legislation

Posted on 5/26/1998 by Jim Pickerell | Printable Version | Comments (0)



MAY 26, 1998

The Senate has passed S2037, the Digital Millennium Copyright Act, by a 99-to-0 vote.

The House version, HR3048, is in committee. If the House version is passed, there will

be a conference to resolve differences in the two bill before a final version is passed

by both houses of Congress and becomes law.

The most important change for photographers in the Senate bill is that it would be a

crime to remove or alter copyright management information, such as a watermark, on an


The bill allows for actual and statutory damages for such removal. A complaining party

may elect to recover an award of statutory damages for each violation in the sum of not

less than $2,500, or more than $25,000. In addition any person who makes a willful

violation for the purpose of commercial advantage or private financial gain is subject

to a fine of $500,000 and/or imprisonment of not more than 5 years.

One of the major purposes of this legislation is to ratify and implement the decisions

of the World Intellectual Property Organization (WIPO) made in December 1996. The

treaties will be meaningless unless ratified by a large number of the 100 countries

participating in WIPO. The U.S. is trying to take the lead in demonstrating its

commitment to protecting American creativity. The government estimates that U.S.

creators are losing $18-20 billion every year to international piracy. This volume has

increased tremendously with the onset of the digital age and the expansion of the


The organizations leading the fight for these copyright changes are the Association of

American Publishers

and the Creative Incentive Coalition .

CIC is primarily a representative of music creators. Photography

associations seem to have been notably absent in the lobbying for these bills. CIC is

asking supporters to send letters to the House Judiciary Committee. You can get more

specifics at their web site.

Critics of the bill are those who want everything on the Internet to be free. Adam

Eisgrau of the American Library Association said, he sees a "legal infrastructure being

created out of whole cloth for the beginnings of a pay-per-use information universe."

In this rare instance, the interests of photographers and publishers coincide. Both

need legislation that will strengthen the traditional "pay-for-use" system. Later, we

can continue to agrue about how much should be paid for various uses, but at least

photo users won't be able to grab the fruits of our labor, for free.

Once "pay-for-use" in the digital environment is more clearly codified in law, we will

still have to fight with the publishers over the issue of whether photographers should

receive part of that pay, or whether the publishers get to keep it all.

Fair Use

One issue not dealt with in S2037 is the matter of "fair use." In the current law

"fair use" is an il-defined catch-all phrase. It not only allows school children to

make photocopies of magazine articles for their private educational purposes, but major

publishers often claim "fair use" and refuse to pay for photographs produced by

professional photographers.

In fact, some law professors teaching copyright law tell their students that when a

client gets caught in an infringement the first strategy is to claim "fair use."

I know of at least two recent situations where portraits taken by professional

photographers were supplied to their customers for personal use, only. Later, these images were

given to the press and distributed worldwide.

When the pictures were originally shot the individuals photographed were of no public

interest. Later, each became involved in a major news story and the press obtained the

photos from their families or lawyers. The news organizations claim that their use of the

images is "fair use" and that they have no responsibility to compensate the

photographers in any way for the creation of these images.

The copyright law needs additional clarification as to what is, and is not, a "fair use". To my way of

thinking, if the use of a copyrighted work accrues commercial benefit to the user, in any way, then the

user should not be allowed to claim "fair use" as a way of avoiding reasonable payment to the copyright owner.

Copyright © 1998 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


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