Features
PACA and ASMP leading the charge on Orphan Works
Nancy Wolff, Counsel to the Executive Committee of the Picture Archive Council of America (PACA) and Victor Perlman, General Counsel to the American Society of Media Photographers (ASMP,) have recently joined forces with other concerned parties to ensure that pending amendments to current legislation concerning “Orphan Works” (i.e., illustrations, photographs, paintings, etc. of unknown authorship) adequately protect photographers, illustrators and other artists, while also permitting proper use of works that truly have no attribution. The US Copyright Office has examined the issue and come up with recommended changes to Orphan Works legislation that Wolff and Perlman agree, as currently worded, place the authors of those works on weak legal footing. Congress will, ultimately consider enacting into law the recommended language from the Copyright Office. The attorneys from PACA, ASMP and other interested groups hope to convince Congress to change the language to strengthen the rights and remedies of the creators of Orphan Works. They address three essential issues covered by the proposed legislation:
1) The requirements for the establishment of a work as “orphaned.”
2) The limitations on compensation, when an author of a work considered by a user as orphaned comes forward.
3) The legal remedy available to the author for recovering compensation for use of the work.
1) Establishment of a work as an Orphan Work. The proposed legislation allows the user of an image to declare it an “Orphan Work” too easily. It sets the bar too low, putting no clear burden on the user to determine the author of a work which carries no authorship information. For example, a web-designer who finds a photo from an old print advertisement for a company now out of business can claim to have tried to contact the company to no avail and declare the work “orphaned.” The web-designer then scans and uses the image on a web-site. PACA and ASMP believe relevant legislation should address this problem by making clear and obligatory a set procedure requiring a higher degree of diligence on the part of the user for determining the authorship of a given work, only after which can the user declare such work an “Orphan Work.”
2) Compensation. The PACA and ASMP attorneys also address the matter of compensation for uses of Orphan Works when the authors makes him- or herself known to the user. Current legislation permits the author to charge only reasonable use fee, but no additional penalties for infringement, if the user meets two simple criteria; prove they made reasonable efforts to determine the identity of the author, but could not do so, and discontinue the use in question upon request by the author. This not only makes clear the necessity for the standard procedure called for above, but, even with such a standard in place, it provides incentive for the user to claim they tried but failed to find the author because, in the event the author comes forward, the user must pay only the fee they would have had to pay had they known the identity of the author from the beginning. Why not simply take the chance the author will never come forward? The user has nothing to lose. As it stands now, this part of the proposed legislation has no teeth. Wolff and Perlman believe the legislation must have a clear standard procedure for determination of authorship and allow for punitive damages in order to effectively deter unauthorized uses.
The matter of compensation, as proposed, has another component disadvantageous to the author. As Wolff puts it, “No award of monetary relief is given if the infringement is performed without any purpose of direct or indirect commercial advantage and the infringer ceases the infringement immediately after notice of the infringement.” The legislation only allows for usage compensation where the use in question serves a commercial purpose. Therefore, by law, a museum or other non-profit organization that used the image would not have to pay compensation to the author, as long as they ceased using it upon request by the author. As worded, however, this provision may also protect the web-designer who used the image on a web-site with no selling aspect and no e-commerce from having to pay compensation as well.
3) Legal Remedy. As proposed, the author’s only remedy against a user who refuses to pay even the use-fee compensation is to initiate a federal copyright action. Usually, such an undertaking costs far more than the sought compensation. Wolff and Perlman seek to have Congress create a Copyright Small Claims Court to handle such cases.
One lesson photographers, illustrators and other artists might take from all this is that they should always make clear their copyright in their work and, to the extent possible, ensure their identity as its creator remains with the work, wherever it may appear. PACA’s Technology Committee strives to establish industry-wide meta-data standards to accomplish this. Despite such efforts, however, orphan works will always remain a problem. To make sure legislation protects artists’ copyrights in orphan works or in works that users might claim to be orphan works, Wolff and Perlman need the help of their respective trade associations members. Working with a group of visual arts organizations, they hope to provide the US Copyright office with a set of “best practices” for users to follow in tracking down the author of a given work before they use it. Photographers and other interested parties can help, too. We urge all visual artists to click here to see Victor Perlman’s open letter about the issue as well as instructions for contacting your congressional representative to express the importance of implementing practical laws concerning Orphan Works.
Click here to see the US Copyright Office report on Orphan Works. The proposed legislation appears on page 127 of the report. Click here to contact Nancy Wolff. Click here to contact Victor Perlman.
Update (03/07/06): To help raise awareness about Orphan Works legislation and its importance to photographers, the Stock Artists Alliance has created a blog dedicated to the issue;
http://orphanworks.blogspot.com
Posted in: Features, Legal / Copyright, Orphan Works, Photographers, Stock Photo Companies
Comments(1)
post a comment »Gayle F. Hegland, July 01, 2006 [#]
FROM THE ILLUSTRATORS’ PARTNERSHIP
Time to Act
Artists and photographers have been joined by writers, textile manufacturers and others in realizing the threat of the Orphan Works Act of 2006 (HR5439). As we continue to spread the word, it’s time again to act in concert. Others in related fields will be doing the same. Starting in about one week – as soon as Congress returns from its Fourth of July recess, we’ll be emailing lawmakers in numbers. This notice is to give you time to get your letters ready.
First, we’re asking each of you to write your Congressional representative. Please note in your first paragraph that you are a.) a constituent; b.) a small business owner; c.) opposed to the Orphan Works Act. You can identify your representative by entering your zip code into http://www.congress.org
Second, please write to members of the House Judiciary Committee.
They can be located on the IPA Orphan Works Resource Page: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00175
Several members of the Judiciary Subcommittee are particularly important because they’ve already shown an understanding of the concerns we’ve expressed in previous letters. Please thank them for this and ask them to vote against this bill or table it until it an be properly re-considered and amended. Here are some of their names:
-Howard Berman (CA, 28th District)
-Darrell Issa (CA, 49th District)
-Bob Goodlatte (VA, 6th District)
-Howard Coble (NC, 6th District)
-John Conyers (MI, 14th District)
Because the bill is being fast-tracked, it’s critical that we write now. To join us, get your letter ready for sending the week of July 10.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185