US Orphan Works Legislation

580 This is a request to all LS members who are US citizens. Currently the US Congress is fast tracking legislation on Orphan Works. Hearings on it began 2 days ago. Repeated below is the description posted on the American Society of Media Photographers website. <a href="http://www.asmp.org/about/index.php">http://www.asmp.org/about/index.php</a> ---------------------------------------------------------------------------------------------------------------------------------------------------------------------- '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 US 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. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------- I believe the law if enacted, is planned to be retrospective for 28 years. Which means that every photograph and illustration with no credit attached since 1978, if floating around in libraries or on the Net can be considered essentially Royalty Free. One of the reasons many younger LS members who aspire to be independent professional photographers will (sadly) find it increasingly difficult to make a decent living, is the increasing practice of widespread copyright abuse, predominantly on the Web, which is of course, set to be the 'air we breathe' in terms of visual communication. This legislation will in effect, make copyright infringement almost legal, and IMO, will be a final nail in the coffin for us as photographers. Even chasing up rampant copyright infringement will be pointless, as no lawyer will take the case, and the abuser is not even liable to pay up. I don't even live in the US, but realise it will have profound implications on the situation of independent photographers Worldwide. The ASMP has appealed for people to fax or write to their Congressman ASAP - details can be found here: <a href="http://www.asmp.org/news/spec2006/orphan_faxcall.php">http://www.asmp.org/news/spec2006/orphan_faxcall.php</a> I would urge all US based LS members to think carefully about the implications of this legislation, and contact their member of Congress using the ASMP letter template as a matter of urgency.

2006-03-10T02:38:21Z

2008-03-12T12:54:19Z

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2006-04-23T18:19:54Z

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false us-orphan-works-legislation----act-or-die 1 US Orphan Works Legislation - Act or Die.

2008-03-12T12:54:19Z

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