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Urgent Call for Your Action on Orphan Works
Posted: Thursday, February 23, 2006
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. Now is the time to act.
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.
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, 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.
So 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,
Vic
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
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)
PHOTOGRAPHER PAMELA JONES RECEIVES RAVE REVIEWS FOR HER LATEST SHOW WANDERLUST
Posted: Friday, February 3, 2006
Key West (January 2006) – Opening night at the Lemonade Stand Art Studio in Key West brought only positive reviews about photographer Pamela Jones. Wanderlust showcases a vast array of travel images from Africa, Thailand, Cuba, The Caribbean and Bali.
Among the many art lovers, was recording artist Jimmy Buffett who purchased 3 pieces as well as locals from Key West and clients from Miami and Palm Beach.
“It was wonderful to see the response from everyone. I really believe Travel can open one up in ways you never knew possible. It allows you to challenge your own beliefs, relationships & spirituality and to discover new directions to explore” says Jones. “It was rewarding to see people as fascinated as myself by these incredible destinations & cultures.”
Pamela is an award winning travel and editorial photographer based in Miami. She regularly shoots for publications and clients such as Conde’ Nast Traveler and Yoga Journal Magazine as well as recording artist Jimmy Buffett. Jones has recently been awarded “Best Series” in Photo District News’s “World In Focus Travel Photography Contest for her images of Bali.
Her show “Wanderlust”, A Collection of Images from recent Journeys is being shown at the Lemonade Stand Art Studio, Key West from January 20 thru February 3rd.Opening Reception January 20 from 7:00-10:00/ Contact Lemonade Stand Art Studio for more information at 305-295-6873.
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