Press Releases On Orphan Works

Posted on 3/7/2006 by Jim Pickerell | Printable Version | Comments (0)

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PRESS RELEASES - ORPHAN WORKS


March 7, 2006

ORPHAN WORKS DISCUSSION

Most photographers and artists organizations are very concerned about the proposed "Orphan Works" remedy to the Copyright law that is working its way through Congress. They are calling their members to urgent action. The following are some of the press releases from these organizations explaining the issue.

An Urgent Call for Action

There is an alarming change in US Copyright Law now being "fast tracked" through Congress with a good chance of passage before the end of the current session of Congress. As currently written, "Orphan Works" legislation would pose a serious threat to stock photographers by removing protections from unauthorized use of our images.

What are "Orphan Works"?

When the copyright holder of a work cannot be located, it's commonly referred to as an "orphan work." The US Copyright Office has proposed "Orphan Works" legislation that could essentially gut the copyright protection now guaranteed to photographers. As currently written, the proposal offers a huge loophole that severely limits the copyright protection of images that can be classified as "orphan works."

All users would need do is make a "good faith, reasonably diligent search" to try to find the copyright owner of an image before they call it an "orphan" and use it anyway. If the copyright owner discovers the use, all they would be entitled to is "reasonable compensation" with no allowance for attorney's fees or means to collect. If the usage has no "direct or indirect commercial advantage," then the photographer would get nothing.

While "Orphan Works" legislation is aimed at making archival works assessable to museums and libraries, it makes no distinction between these non-profit users and commercial users, nor between historical works and contemporary online imagery. This can only result in a huge potential for MORE infringement of stock images and LESS recourse for stock photographers.

What is SAA doing about it?

SAA has joined a coalition of industry groups to respond to the Copyright Office proposal. Initiated by the American Society of Media Photographers (ASMP), the Coalition also includes the Advertising Photographers of America (APA), Editorial Photographers (EP), Picture Archive Council of America (PACA) Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), and the Illustrators Partnership of America (IPA, which carries with it approximately 40 other organizations).

In the UK, the Association of Photographers (AOP) and the British Association of Picture Libraries and Agencies (BAPLA) have joined the coalition. Although their political clout is necessarily indirect in this matter, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the US market, but also it could set up pressure for similar laws in other countries.

SAA is actively working with the Coalition members and dedicated to assisting in any way we can. As a start, we are posting information and sending out letters to increase awareness across the industry, communicating with decision makers and other interested parties, attending upcoming Congressional hearings, and providing comments and feedback during the evaluation and drafting process.

What can YOU do to help?

Take the time to understand the severity of this issue. There is excellent commentary posted by members of the Coalition that explains the specifics of this proposal and other resources.

Speak up about it. In the past week alone, many photographers have already responded by writing to their home legislators and the members of the House and Senate Judiciary Committee who will be voting on this bill. More active participation will be needed from you as "Orphan Works" moves forward in coming weeks and months so stay tuned.

http://orphanworks.blogspot.com/2006/03/these-are-not-orphans.html.

Also see Story 808

Stock Artists Alliance Launches Blog on "Orphan Works"

March 6, 2006. The Stock Artists Alliance has launched a blog to provide up-to-date news and commentary to the stock community on proposed "Orphan Works" changes to US Copyright Law. http://orphanworks.blogspot.com/

This legislation, as proposed by the U.S. Copyright Office, would pose a serious threat to stock photographers by removing protections from unauthorized use of our images. The bill, now in draft stage, is being "fast tracked" through Congress and has a good chance of passage before the end of the current session.

SAA is fully engaged on the "Orphan Works" issue and we are working to advocate changes to this bill to preserve our copyright protection. We have joined with fellow trade organizations to form an active Coalition of that has quickly come together to fight this threat to the livelihood of independent artists as well as those engaged in the distribution of our images.

What SAA brings to the Coalition, and to both legislators and supporters of the bill, is an understanding of the Stock Photography business. We hope that by articulating our concerns, we can help to persuade Congress of the need to preserve the copyright protection for photographers in their drafting of "Orphan Rights" legislation in the coming weeks.

There will be frequent updates and commentary posted to SAA's Orphan Works blog at:
http://orphanworks.blogspot.com/2006/03/urgent-call-for-action.html

ASMP Sees Harm In Orphan Works Proposal

The American Society of Media Photographers (ASMP) has issued a
legislation alert regarding the Orphan Works Copyright proposal
that was recently submitted to the House and Senate Judiciary
Committees. The Society is concerned that the proposed
legislation would be financially devastating to professional
photographers if it is enacted in its current form.

The U.S. Copyright Office issued its report on Orphan Works only
a couple of weeks ago. The 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.

Problem For Photographers And Illustrators

Orphan works are basically works whose copyright owners cannot be
located. However, the term "Orphan Works" is a dangerously
misleading phrase. It sounds 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 their published
photographs may well become Orphan Works.

The reason is that 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. This is true even for photographs that are registered at
the Copyright Office; there is no mechanism for identifying the
photographer from a description or reproduction of the
photograph.

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 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 the photographer's permission.

(There's 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. Suppose a photographer discovers
one of his works being used and demands a reasonable licensing
fee, but the user refuses to pay. The photographer cannot afford
to sue to collect the minimal amount to which he is entitled.
Without the possibility of an award of attorneys' fees or
statutory damages, no lawyer would take the case; and if he or
she did, the photographer would end up paying far more legal fees
than he could possibly collect.

The bottom line is that, even if a photographer does everything
right, including registering all photographs immediately at the
Copyright Office, every photograph that he publishes 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 the
photographers, but if that doesn't produce a name and contact
information for any reason, they may be entitled to a free, or
almost free, pass.

Other Associations Join in Opposition

ASMP has formed a coalition of organizations that includes the
Graphic Artists Guild, the National Press Photographers
Association, the Illustrators Partnership of America (which
carries with it approximately 40 other organizations), and the
Picture Archive Council of America. Additional photographers'
organizations have approached but have not yet responded, so that
list may grow.

ASMP is working on the Hill to try to change this proposed
legislation, and is also exploring possible non-legislative
fixes. In addition, it has urged all its members (and other
professional photograpers) to contact the Senate Judiciary
Committee members and the House Judiciary Committee member to
explain how the proposal would harm them.

ASMP Offers Options On Orphan Works Proposal

On Thursday, February 23, Eugene Mopsik, executive director of
the American Society of Media Photographers, attended the annual
American Bar Association Intellectual Property Section Update
presented by the Copyright Office. All of the principals of the
office were in attendance, including Ms. Marybeth Peters, the
Register of Copyrights; Mr. David Carson, General Counsel to the
Copyright Office; and Mr. Jule Sigall, Associate Register for
Policy and International Affairs (and principal author of the
Orphan Works report). The update presented an overview of the
activities of the Copyright Office for the preceding year and
provided information on issues of current interest.

There was much discussion of Orphan Works and the various
assumptions made that led to the current recommendations. It is
ASMP's conclusion that the current report and recommendations
have accommodated the needs of the library, museum and university
communities, in addition to commercial users, while ignoring the
special needs of photographers, graphic artists and illustrators.
While historically there has been a sensitivity to the needs of
creators within the Copyright Office, this report signals a shift
and reveals a lack of understanding of the particular workings of
the commercial art and photography marketplace. It further
reveals pressures being brought to bear by those who find
copyright an outdated and restrictive covenant.

There is still an opportunity to exert influence and try to
improve this proposal before it becomes the law of the land.

    Be
    sure to write to your elected representatives!
    Go to http://www.asmp.org/orphanworks to see Victor Perlman's letter to ASMP members, a draft letter to send to members of Congress and a list of addresses for the members of the Senate and House Judiciary Committees. Perlman is Managing Director and General Counsel of ASMP.

One of the options includes a proposal, initially advanced by the
Publication Photographers of America, for the creation of an
Orphan Works Small Claims Court. Additionally, ASMP has suggested
that this new regulation should only apply to uses that would
normally constitute Fair Use -- primarily non-commercial uses by
non-profits -- and, in instances of egregious abuse of license,
that court costs and legal fees should be recoverable. Another
option includes the creation of searchable image databases that
would enable potential users to locate a rights holder even when
they did not know the rights holder's name. For photographers,
this situation occurs more often than not, and it is at the core
of our problem.

For reasons unknown to ASMP, these recommendations and hearings
are being fast-tracked. The next round of hearings will be on the
8th of March. ASMP will be in attendance, and PPA will be
testifying directly. ASMP has been told by legislative staffers
that we will have direct participation in other hearings. To
date, we have met with staffers in Senator Hatch's and Senator
Leahy's office in addition to staffers in Representative Conyer's
office and staffers with the House Judiciary Committee. ASMP
continues to work closely with PPA, APA, EP, SAA, NPPA, IPA, GAG,
and a number of international associations.

ASPP Announces Urgent Legislative Alert/Orphan Works Legislation

On January 31, the U.S. Copyright Office issued a Report on Orphan Works, and this proposal has suddenly moved onto Congress¹ front burner. This proposed legislation would enable people to use so-called "orphaned works" (including photographs) without the permission of or payment to the copyright owner. Under the proposed language, a copyrighted work would be considered "orphaned," and therefore could be so used if, after a reasonable effort, the potential user is unable to locate the copyright owner. With more and more photographs being published on the internet, credits (the traditional way of tracking copyright owners) are rare or non existent. Even if the photograph had been registered with the Copyright Office, without a name of the photographer and/or agency to track, the likelihood of finding and compensating the individual is rarer still.

This proposed legislation also cuts to the heart of previous notions of statutory damages for copyright infringement, since the most the copyright owner would be able to collect is ³reasonable compensation² --- and under certain circumstances, no payment whatsoever.

Naturally photographers, agencies and indeed all our photographic professionals need to be very concerned about this issue. ASPP urges you to act and act now, since Congress may pass this legislation before the end of the current session. Indeed the hearings are going to be this Wednesday, March 8th. Many of our sister associations such as ASMP, PACA, SAA and PPA are leading the campaign, and I urge you too to get involved.

PACA's Legal Counsel, Nancy Wolff, Sums Up Urgency Of Situation

The first hearing will be held March 8 on the house side. Only 3 speakers and a representative of the Copyright Office are permitted to appear in person. Comments can be sent 10 days after the hearing. I spoke with Maria Pallante who will be speaking and filing comments for the museum and libraries. We found that there was much agreement on our issues. David Trust of PPA wi ll be speaking for the photography community and we will speak before the end of the week. Similarly, I plan to speak with Allan Adler who is representing the publishing community. If there are areas we all can agree on, in terms of language change and a clear legislative history, it will be helpful in having an orphan works bill that will not prejudice photographers as much as other creators. It is of course important that we continue to look at areas where we can assist the user community in finding the owner to avoid the situation of being unintentionally ³orphaned². © Nancy E. Wolff, Esq.


Copyright © 2006 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 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, 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: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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