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DigitalPro Shooter Volume 4, Issue 8, March 9, 2006

At the end of the day, all most photographers own besides a bunch of beat-up cameras and a hard-drive full of bits (or a cabinet full of slides) is the copyright to their images. Thus it is with near terror that photographers who have read through the suddenly fast-tracked "orphan works" law begin to panic.

The well-intentioned proposed amendment to the Copyright Act is designed primarily to allow museums, libraries and other "keepers of our heritage" to be able to safely use copyrighted works if they can not find the copyright owner to acquire a license. Comments made by citizens about the bill show that it also has support from the clients of photographers who want to make additional use of their images but can not reach them any longer.

In principle those are laudable goals. However, the bill as currently drafted is terribly one-sided in favor of the publishing and library industries and very flawed when it comes to protecting the rights of photographers. In particular the draft bill:

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  Makes it legal for anyone desiring to use a copyrighted work for any purpose to go ahead and use it without a license if they have made "good faith, reasonably diligent search" to locate the copyright owner.



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  Use of such an "orphaned work" is free, unless the copyright owner comes forward. But even in that case the copyright owner can only claim (or sue to claim) the normal license fee, but not any additional damages or attorney's fees--even if the work had a registered copyright.



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  And even if the copyright owner discovers the violation, if the user is not making commercial use of the image, then there is no recourse and no compensation.

Why this COULD BE Terrible
for Photographers

The bill (and the Copyright Office report on which it is based) openly assume both that most copyrighted works are credited and that it is easy to locate the holder of a copyright if a work is registered. These assumptions are both blatantly false in the case of photographs. Many images are no longer directly credited to the photographer and there is no effective way to search to see if an image is copyrighted or who the copyright holder is even if you have the image in hand. While paying some lip service to the notion that photographers needed protecting, Jule Stigall, testifying for the Copyright Office, essentially brushed them aside with vague thoughts about future search capabilities and stood behind the legislation as written. He had no concrete plan for how the process of registering and locating a copyright owner or photographer might work and how it could be tied to the effective date of the legislation.

In essence the amendment as worded makes it okay to steal from a photographer if you don't know who they are or how to ask them for permission. And if you get caught the worst that can happen is that you have to pay what you would have anyway, or maybe not even that. We're sure you can think of ways this could affect you in your specific line of photography, but to give a few possible examples:

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  The client of a social (Wedding/Event/Portrait/Sports) photographer wants reprints. They look in the yellow pages and can't find the photographer listed anymore. Off to the photo lab and never look back.



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  Your image is used in a publication, uncredited as is increasingly the case, and the publisher gets bought or closes it's doors and can't be reached. This bill could be interpreted as giving anyone free reign to pirate the images in the publication.



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  Your image is pirated and put on the web. Someone sees it, likes it, and wants to use it. Since it is pirated they don't know who you are (and of course the meta-data has been stripped) so they can't try to reach you, so they can--potentially legally--go ahead and use the image without further compensation to you. If you take the trouble to track them down and sue them the most you can recover is what your initial license fee would have been. Hardly an incentive to try to find violators.

Are these extreme? Maybe, but they're all real examples of what could happen if the bill is passed as currently worded. And for some reason Congress seems determined to fast-track this bill for passage this Session.

At the hearing on this bill on March 8th at the sub-committee of the House Judiciary Committee on Courts, the Internet, and Intellectual Property everyone involved agreed to try to get consensus wording by the end of March so the bill could proceed. David Trust, CEO of Professional Photographers of America was the only witnessed who presented the issues facing photographers. His articulate opening statement did a good job of framing the issues, but frankly he was boxed in during questioning, and appeared to in the end agree that a couple fairly minor concessions might make the bill acceptable. He was put in a tough position by the committee--since all the other witnesses represented libraries, museums, the Copyright Office who drafted the bill or publishers, all of whom are in favor of gutting the rights of independent photographers if they make their lives more complex--but it would have been helpful to see him put up more of a fight about some of the principles involved.

Fortunately, Representative Howard Berman did a good job of at least helping frame the issues in a reasonable way, which elicited some possible points of compromise and ways out of the conflict. In particular the two items which were broadly agreed upon were:

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  Exception on the limit of recourse in the event that the offender was shown not to have made a diligent search if the copyright was registered. A nice thought, but this puts a huge burden on the struggling photographer to prove sophisticated points of law--possibly in a remote jurisdiction.



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  Delay the effect of the legislation on photographs for a year. All well and good, but unless other steps are taken to make it fair by that time it is only a sop.

Also discussed were the options of:

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  Allowing photographers to get redress in small claims court. Also a good option (As Trust made clear but his word choice was possibly lost on the committee) but obviously sometimes the damage will be for larger amounts.



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  Berman proposed that if other clients could find the photographer that would be prime facia evidence that the work was not orphaned. Very interesting, although I'm not sure I see the museums or the copyright office agreeing to this without a fight.

What needs fixing in the proposed bill:

In our view, while fixing the issue of truly orphaned works is clearly a laudable social goal, any orphan works bill should address the following issues:

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  More specifics on what is required for a diligent search. This is very tricky since there is of course no good way to search for a photographer when you have an image unless you already know the name of the photographer. It is far too easy to give up. Without coming to a resolution on this issue or putting some timeframe (maybe the rules should be loosened for images over a certain age?) it is hard to see having a bill with any realistic protections for photographers.



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  Plan for a system of registration and location that would make it possible for photographers to register and protect their intellectual property from accidently being deemed "orphaned." The Committee and supporters are quick to claim that "the technology exists" to do this, but only offered hand waves and no consensus on the what they thought would work, how it could be deployed, and who would pay for it. A plan for this solution needs to be implemented in parallel with any change in the Copyright Act to weaken photographers' rights.

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  Provisions that if a diligent search is not undertaken, full recourse under law is available to the photographer. And allowing the photographer the option to use small claims court would help make legal recourse an option.



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  No assumption that just because the person violating the copyright is not a commercial institution that they should get free use. Many of these "non-profits" are multi-million or even billion dollar institutions (the Guggenheim was one of those giving testimony today) so they shouldn't need to make their living by taking from the mouths of independent photographers.



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  A system for electronic submission of copyright registrations. We can file and pay our taxes online, there is no reason we shouldn't be able to register our copyrights electronically as well--especially for digital images. This could be fixed and should be.

Apologists for the bill as currently worded rely on two main defenses: First, that users will have to try really, really hard to find the photographer and second that photographers should just make sure they get attribution so they can be found. The first is wishful thinking and if true needs to be written into the bill in the form of specific steps that need to be taken. The second is a hallucination. There is no way that photographers can, singly or as a group, force publishers and clients to guarantee they will be credited or that their publishers will properly refer all inquiries about their images to them.

Who was Missing from the Hearing

The usual suspects in copyright protection, the motion picture and recording industries, were noticeably absent from this discussion. Presumably that is because they act aggressively to protect their media and can normally control their distribution to ensure they are carefully attributed and therefore that a violator can not claim they were orphaned. However, they may be missing some of the nuances of this bill as worded. In particular, if a pirated work is found on the Internet and someone who wants to make further use of it can not identify it or its owner then one can read this bill as making it legal for them to go ahead and use the content without a fee--unless and until they are tracked down notified and possibly sued.

Ironically, longer copyright periods are one reason the orphan works issue is getting worse for researchers and causing the push for this amendment, as researchers have to deal with copyrights on older and older images. But that issue is not one that was driven by or serves working photographers. It was created at least partially to serve the media interests like Disney that saw their valuable copyrights to properties such as Mickey Mouse expiring. However, it is the workaday photographer--PPA testified that the average professional photographer in the US makes less than $35,000 per year--that is left holding the bag and having their rights further eroded.

What you can Do?

ASMP (the American Society of Media Photographers) is spearheading a fax campaign to the US Congress to make sure the voices of the 130,000 professional photographers and their allies are heard. You can get sample faxes and more information on their action page.

In specific, Representatives who were there for today's hearing included: Howard Berman (the most concerned with protecting photographers' rights), Zoe Lofgren (hard to tell quite what her thoughts were on this) and Darryl Issa (didn't seem to care at all about photographers from what I heard in the hearing), all from California, as well as Chairman Smith from Texas (who mostly seems interested in getting something settled on by the end of the month).

The Copyright office had a lengthy open comment period and received over 700 comments which they took seriously. However, as you might expect, most of those comments were from those desiring an Orphan Works amendment. Most photographers were unaware of the issue and had no idea such a bill was even contemplated. Now that we are becoming aware we need to make sure our opinions and inputs are heard in the legislative process.

We also have a thread on our Digital Cafe Forum where readers can ask questions or make comments about the proposed legislation. Please feel free to join us there for the latest information and answers.

This bill makes it more important than ever for photographers to register the copyright on their images. Fortunately, nikondigital.org contributor and veteran commercial photographer James Cavanaugh has authored a Guide to Copyrighting your Images which we've published in our Getting Started section. It is a must read for anyone not already sending all their images in to be copyrighted.

Who is on Board

According to the National Press Photographers Association, they and "other organizations joining in the opposition of the Orphan Works proposal include the Graphic Artists Guild, the Stock Artists Alliance, Advertising Photographers of America, Editorial Photographers, the Picture Archive Council of America, and the Illustrators Partnership of America (which carries with it approximately 40 other organizations). Tonight, overseas organizations including the Association of Photographers Ltd. (AOP), the British Association of Picture Libraries and Agencies (BAPLA), the British Institute of Professional Photography, and other imaging groups from the U.K. have added their support to the opposition" and they asked that "Please contact your congressional representatives on this issue," Calzada repeated today. "The protection of copyright is critical to the future of our industry." In addition the ASMP has asked their members to mobilize as well, and provided an action link.

What's new on nikondigital.org

We're pleased to announce a great new addition to our Getting Started section. Mike Russell, Photoshop guru and author of the powerful Curvemeister plug-in has written Using Curves, an introduction to Photoshop's most powerful command. Whether you're a beginner or not you'll learn something from the article, particular Mike's brief introduction to using alternate colorspaces with curves. Get Started with Curves Now!

Also veteran commercial photographer James Cavanaugh has authored a Guide to Copyrighting your Images which we've published in our Getting Started section. It is a must read for anyone not already sending all their images in to be copyrighted.

DigitalPro Tip of The Week

The likely passage of this bill makes it even more important that your images are carefully attributed. Image management tools such as DigitalPro for Windows offer multiple ways to do this. First, you can add your copyright and credit to the meta data of your images--either to the original file or to your submitted version, and second, you can automatically overlay a watermark on the image with your copyright information for online posting.

Other coverage of the Orphan Works Bill from photo organizations:

APA Urgent Message

PPA Call for Changes in the Bill

ASMP Call to Action & fax Instructions

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Good shooting!

--David Cardinal, editor DigitalPro Shooter

nikondigital.org / Pro Shooters LLC

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