Sunday, April 13, 2008

Urgent Call for Your Action on Orphan Works

I know it's Sunday, and you're not expecting a blog. A friend sent me a link to this article, and I felt it needed immediate attention. Artists and those who just appreciate should read this article all the way through.

Below is the article and sample letter to congress which can be found on the website for the American Society of Magazine Photographers.

Urgent Call for Your Action on Orphan Works

We have been monitoring this proposal for the past year and, suddenly, it has moved onto Congress' front burner. As it stands, it will be a disaster for photographers.

Webmaster's note: This page was published on March 3. Since then, several things have changed. The original text is shown below, but certain lines are crossed out because of new information that appears on our update page.

The fax campaign was effective, and we have been heard. Please do not send faxes now. At some point in the future, it will be time for a second round of pressure politics — but for now, take a well-earned break.

The following is a letter to ASMP members from Victor Perlman, ASMP's legal counsel.

Dear friend,

I am writing this message while on the train to Washington to meet with Congressional staffers on both the Senate and House sides. The subject is the proposed legislation dealing with so-called "Orphan Works." If you write to your congressional representatives only once in your lifetime, I urge you make Orphan Works legislation that "one time" and to take the action outlined below.

Below is a model letter for you to copy and paste onto your letterhead and fax (yes, FAX) to your own Congressional representatives on both the Senate and House sides, and to the members of the House and Senate Judiciary Committees. A list of names and fax numbers for those committee members follows the draft, along with a link for you to identify and get fax numbers for your own representatives in both houses of Congress.

You will notice that the first sentence in the letter below is blank and that you have to write it in your own words. Why? Because legislators tend to discount letters that are identical, suspecting that they are produced and sent by trade associations in the names of the members with no actual member involvement at all. They want to hear from voters, not pressure groups. The message that should appear in the first sentence or two is that you are a professional photographer and that the proposed Orphan Works legislation would be financially devastating to you if it is enacted in its current form. You can copy and paste the rest, if you wish, but even there it is always best if you use your own words.

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.

An excellent statement of the problems the proposed law would cause for photographers has been prepared by APA. ASMP is in substantial agreement with the points this document makes.

Contact info for members of the Judiciary Committees is on this page. But as noted above, please do not send faxes or letters now.

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.

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

A draft letter (for you to adapt)

Re: Orphan Works Copyright Legislation

Dear (Senator or Representative) ____________________:

(Fill in first sentence) ____________________________________________________. The amendment to the Copyright Act proposed by the U.S. Copyright Office is a disaster in the making for independent photographers and other independent creators of visual works. We are different from all other copyright owners because, unlike other creators, it is the exception rather than the rule that our images are published with any kind of credit line, copyright notice or other form of attribution. Credits are unusual in print publications, and are virtually non-existent on the Internet. Without names attached to them, most published images are likely to become Orphan Works.

The proposal for dealing with Orphan Works is based on an erroneous assumption on the part of the Copyright Office: See footnote 378 on page 115 of Copyright Office report, ".... The likelihood of statutory damages or attorneys' fees being awarded in an orphan works case is probably low, given that for those remedies to be available, the work must have been registered prior to infringement, see 17 U.S.C. section 412, and if a work is registered it is unlikely that the copyright owner is unlocatable through a diligent search." This simply is not true for published works of visual images. Without credit lines or other attribution, there is no way to know a photographer's name in most cases. Without a name, there is no way to search the Copyright Office records for a photograph.

As written, the proposal might work for copyright owners of other types of works, but for independent creators of visual images, it will end up converting massive numbers of images, and probably the majority of published images, to Orphan Work status.

Making the situation even worse, with recovery for infringements of Orphan Works limited to reasonable compensation with no possibility of receiving attorneys' fees, independent photographers and illustrators are left with no practical way of receiving compensation from a user who refuses to pay. It would simply cost more to sue than the possible compensation at issue.

I implore you to fix the proposed Orphan Works legislation so that it will not deprive photographers of protection under the Copyright Act. At a minimum, I ask you to include either a provision to allow recovery of attorney's fees or to create some form of small claims court to award compensation, especially where a user of an apparent Orphan Work refuses to pay after receiving a demand from the copyright owner. If you do not, this legislation may well put me out of business.

Thank you for your time, attention and, I hope, support.

Respectfully yours,

(your name)

-The Coup Magazine



David Sanger said...

This is completely out of date and refers to the Orphan Works bill of 2006 which failed in committee.

AMSP is NOT urging any letter-writing campaign for the 2008 bill.

I suggest this blog post be removed/edited.

The current ASMP link is here

Anonymous said...

I don't support the orphan works and I won't be voting for Obama because he supports Shepard Fairey who is a perfect example of someone who is already abusing current copyright law and will continue to do so if orphan works is passed. Look at the link below