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So I went looking for a link to the Copyright Office's Form VA today, and when visiting this link: http://www.copyright.gov/forms/formva.pdfThis was the resulting page:  So, what gives? (Continued after the Jump)
 The Copyright Office is now phasing out paper registrations in favor of their eCO (i.e. electronic Copyright Office) system. They want you go to their eCO Online System to learn more, and begin your registrations that way.
The site directs you to use the Form CO, as noted here:1 - Registration with Fill-In Form CO • The next best option for registering basic claims is the new fill-in Form CO. Using 2-D barcode scanning technology, the Office can process these forms much faster and more efficiently than paper forms completed manually. Simply complete Form CO on your personal computer, print it out, and mail it along with a check or money order and your deposit. The fee for a basic registration on Form CO is $45. They go on to say on the site:2 - Registration with Paper Forms • Paper versions of Form TX (literary works); Form VA (visual arts works); Form PA (performing arts works, including motion pictures); Form SR (sound recordings); and Form SE (single serials) are still available. The fee for a basic registration using one of these forms is $45 payable by check or money order. Form CON (continuation sheet for applications) is also still available in paper. These paper forms are not accessible on the Copyright Office website; however, staff will send them to you by postal mail upon request. Remember that online registration through eCO and fill-in Form CO (see above) can be used for the categories of works applicable to Forms TX, VA, PA, SR, and SE. See below for Group Registrations.
Also according to the site:"Certain applications must be completed on paper and mailed to the Copyright Office with the appropriate fee and deposit. Those application forms appear " [here]. Of very interesting note is the following warning/disclaimer that I'd not seen before:| Notice: Please be aware that when you register your claim to a copyright in a work with the U.S. Copyright Office, you are making a public record. All the information you provide on your copyright registration is available to the public and will be available on the Internet. |
This is of note because your registrations are accessible by the public now, albeit in a limited manner, and will likely be available in a much broader sense once OrphanWorks legislation, in whatever final form it is, passes.
It is important to note - sending in a Form VA for your registration is still perfectly acceptable. Using the eCO system may get you your completed registration certificate and registration number back much faster, but not with any more protections than the Form VA certificate will.
Alternatively, you can use the sample Form VA that I've completed, with explanations for what goes in each section, and why we've chosen to do that, by visiting this link. If you'd like to know more about the hows and whys of our registration process, it's in my Best Business Practices for Photographers book, Chapter 14, beginning at page 203. If you'd like to see every step of the registration process from inside the Copyright Office before all the modernization, we wrote about it and have photos for your viewing pleasure here.
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Recently, the well meaning folks at Public Knowledge purported to demystify the Orphan Works bills, suggesting their own series of "Myths", and offering up "facts" ( Orphan Works Myths and Facts). The problem is, the PK folks just can't have their own set of facts. To that end, we've taken the opportunity to "bust", correct, clarify, shoot holes in, or otherwise offer a contributing attorney’s criticism of the PK "Facts".
PK posited Myth #1: The bills would take away copyright protection from every work a visual artist ever created! The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.
 A Far more accurate take: The bills do take away the right to statutory damages for infringement in the case of false negatives. False negatives are very likely in the case of visual arts and other copyrights as most of the available databases either don’t cover a particular category of copyright at all (such as visual art) or require a metadata search (which has been rejected by many courts, including Judge Patel in the Napster case). The bills do not require “detailed guidelines”, just “best practices” which have yet to be determined and won’t be determined before the law would go into effect (1/1/2009)).
(Continued, after the Jump)
PK posited Myth #2: The bills would mandate registration of all visual arts in expensive, private registries.Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services. A Far more accurate take: It is true the neither bill requires a mandatory registration as that would be a clear violation of Berne, NAFTA, TRIPS, WIPO and WTO treaties. The substantive effect of the bills, however, which is what must be considered, is that the likelihood of false negatives increases exponentially if works are not registered in a searchable database. That means that artists must take the risk that if they are not digitizing their entire catalogs they will be orphaned.
PK posited Myth #3: Unavailability of statutory damages means that owners cannot get compensated.Both bills would require a user to pay a reasonable compensation to an emerging owner. This compensation is defined as the amount the parties would have agreed upon had they negotiated a license before the use began. If a user refuses to negotiate with the emerging owner in good faith or pay the compensation within a reasonable time, both bills currently provide that the user would be liable for all the remedies currently available under copyright law including statutory damages, which could be as high as $150,000 per work. Statutory damages of this sort are really punitive damages, and since owners will be reasonably compensated to be “made whole,” user communities have proposed limiting damages to at most paying the owner’s attorneys fees. A user’s desire to avoid having to go to court and pay double attorneys fees (his own and the owner’s) would provide a good incentive to any user to negotiate an appropriate license. Thus, the bills would provide a fail-safe means of ensuring that owners get compensated. A Far more accurate take:What is missing from this “Fact” is that the liability only arises if the user is (a) found by the copyright owner, and (b) sued by the copyright owner. Public Knowledge may not like statutory damages and pejoratively describes the standard of 100 years as “punitive”, but statutory damages are a right of artists that is being taken away by this bill. There is nothing in the current marketplace that would suggest that users intend to behave within the proscriptions of the law. If infringement is this rampant WITH statutory damages, imagine what it will be like WITHOUT statutory damages as a stick.
PK posited Myth #4: The bills would institute registration formalities in contravention to international treaty obligations.The bills impose no new registration requirements on owners. While existing law does not require owners to register their works to claim copyright, it does obligate owners to register their works prior to infringement in order to receive statutory damages. The orphan works bills do not mandate any additional registrations beyond current law, neither to the Copyright Office nor to registries certified by the Copyright Office. To qualify for protection under the bills, a user may have to search both of these sources for the information about the owner. However, a user’s obligation to search these resources does not create any requirement on owners to register their work. A Far more accurate take:The substantive effect of the bills is to require registration and will almost assuredly be found to violate Berne. The registration burden is entirely on the copyright owner—the user is not even required to give constructive notice of the infringement by filing with the Copyright Office—which likely is a violation of 17 USC 205.
PK posited Myth #5: Under the proposed new bills, since the entirely of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original.A derivative is based off the original, but that does not allow the user (who is also the owner of the derivative) to somehow take over the copyright of the original. Nor would the bills allow the user to claim any additional rights from the original work. A Far more accurate take:There should be no new copyright afforded to a “derivative” without the consent of the copyright owner. These bills change the law as it applies to derivative works, and takes away the copyright owner’s right to consent to any derivative.
PK posited Myth #6: Any user could fake a “dilligent search” and use the orphan works limitatin to infringe. Couldn’t a bad actor falsify the records of their search?Orphan works legislation does not make an owner more vulnerable to bad actors, nor will it make infringement any easier for bad actors. A user that fakes a diligent effort would be considered a bad faith user, and would be on the hook for the full panoply of remedies under copyright law. If a user is going to claim this orphan works limitation, he’s going to have to plead it up front in court, and again up front in the discovery process. This prevents him from hiding information or prolonging discovery. Also, the “pleading with particularity” requirement means that the infringer’s lawyer must sign his name to the fraudulent conduct. Even in worst case scenario, where a court does not find fraud, the owner still recovers reasonable compensation. The fact that the infringer must pay reasonable compensation makes fraud extremely unlikely. Why perjure yourself in federal court about conducting a search, when you’ll still be required to pay compensation. If you’re going to lie, you’re best off claiming that you never copied the owner’s work in the first place, and any similarities between your work and his are coincidental. A Far more accurate take:It is more likely that many actors (good or bad) will simply lose their records or be unable to prove how they’ve complied with whatever search requirements there are once a copyright owner comes forward. The point isn’t that the “bad actor” will falsify search records, it is that the message of the statute is “search just hard enough not to find the copyright owner”. Since the bill would permit more than one set of “best practices”, anyone—including Public Knowledge--could develop a set of “best practices” for a diligent search that would be worthless if the point is to find the copyright owner. The concern is not that someone will lie to avoid liability, it’s that the bill allows them to steal fair and square because it is so one sided and out of touch with commercial realities.
There's a lot of misinformation floating around about these bills. I can't say it enough - READ THE BILLS. Here's the links: ( S.2913 and H.R. 5889). If they don't make sense, re-read them. Try to find loopholes that you yourself could exploit, and then realize that someone somewhere is going to monetize whatever loopholes you find - and quite possibly with your creative endeavors!
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 I've made images of probably over a thousand artists and musicians over the nearly two decades I've been making images. In fact, I am shooting a performance of a well-known 80's band on Monday for a client. On these assignments, I maintain my rights to these images, as well as preclude any conditions of my exercising those rights. I wrote extensively about making this type of imagery back in September ( So, You Want to Shoot Concerts? - Primer, 9/18/07), and I enjoy the continued challenges this type of work presents. On more than one occasion, I have been presented with contracts I am supposed to sign in order to gain access to the venue, and these contracts restrict uses or transfer ownership or use to the artist I am assigned to cover. These contracts we just don't sign, not only because it's our policy, but it's the policy of the publications and clients we work for that any restrictions such as that have to have been negotiated in advance of our appearance, and more than once, a PR person came after me as I was walking away from signing, saying I didn't have to sign it, and could still cover the show. Sometimes I was on assignment for Rolling Stone, other times, lesser publications. Now, one record company is taking all the images they have - some probably from employees images, others no doubt, from freelancers who they hired and recieved copyrights/broad re-use rights from, and is licensing theses images. (Continued after the Jump)
The New York Times is reporting (Sony Taps Into Photo Archive as a Resource During Hard Times, 5/29/08) that Sony Music is looking to license out some serious images of their artists:
"Some of Sony’s music executives believe there is a gold mine under the company’s New York headquarters on Madison Avenue...'We’re looking to take advantage of all the assets of the company, not just the audio recordings'...". The article makes sure to note Sony's respect for the performers "To sell photos from the archive, Sony BMG gets the permission of the artists or their estates and gives them a cut of sales..." but wait? No mention of any compensation to the photographers who created the images.
If Sony owns the images, or the rights to re-sell them, then, by all means they should do so. I have no bones to pick with that. What I want to caution you to do is that, when a company - musical in nature or not - says that they need all rights, or copyright, and that they aren't going to do much with the images, that you think twice. They may not now, but they well could as those assets appreciate, and you're cut out of the loop.
Always do everything in your power to retain your rights to your images when a client comes calling. If you opt to license an extremely broad rights package (i.e. unlimited for ever) be sure to limit it to uses by that company only, or if not, to ensure that they are not exclusive rights, and be darn sure you are properly compensated to the breadth and extent of that client's rights package.
The article is definitely worth a read, and will give you insight into the many many ways your images can find their way into uses you never anticipated.
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 NOTE: There has been SIGNIFICANT discourse in the comments section of this post, which makes it well worth reading - AGAIN, in light of the insights by a number of folks.
-- John
I got to thinking the other day, about how many times I license an image to a client exclusively. I sign a contract. It's a rigid contract. Usually it's exclusive to the industry, sometimes it's a complete exclusive. I promise I won't license the work to anyone else that would dillute the client's brand for the work they commissioned me to make. Here's an example of an image used in a multi-million dollar ad campaign (not by me though) for Nike:  When that photographer (who goes by the name of Boogie) doesn't submit this image to the Orphaned Works database, his work will quite possibly become orphaned. His background is noted here: This Thursday is Nike Boots and Vault in Harlem will show an original photographic Exhibition by Boogie. Boogie is a Serbian immigrant with a body of work that’s graced the page of The New York Times, Time, Maxim, Playboy, and Rolling Stone. In his photography he not only captures a moment of life but nearly the whole story as well. Boogie’s well know for his incredible photos from the Bed-Stuy area of Brooklyn capturing the life of gangs of the area. Boogie no doubt licensed to Nike the exclusive rights to use this (and others he made) for their campaign. They surely insisted that these images not be used to promote other footwear lines, if not all other uses, for the duration of the ad campaign. A Google search for " boots gangs brooklyn" returns this image in the result. Hit that link to see it. Dragging the image to Photoshop reveals no metadata. There's no photo credit, and no corporate logo. When Nike sees this image being used for something else (this image is 490px wide, big enough for lots of web ads) they will naturally go to the photographer. Here's the way that conversation will go: (Continued after the Jump)
Nike: Hey Boogie, you're in breach of our contract for licensing that image to Brand X for their ads. We had an exclusivity clause.
Boogie: Hey Nike, I didn't know anything about that. They're infringing my work.
Nike: You did register that work with the copyright office?
Boogie: Of course! I register everything.
Nike: Good. Now, let us know what's happening with this. We're very upset.
Boogie: I'm on it.
***
Boogie: Hi Brand X, you're using my photo that I shot for Nike in your own ad campaign. I didn't give you permission, and you stole it.
Brand X Rep: No, we didn't steal it. In fact, we did a search to find the image, and it came up in our web search. We tried to determine who's it was. In fact, we went to the databases that the copyright office set up so that we could search for it.
Boogie: But I didn't give you permission, and you didn't pay me either. Your using it puts me in breach of contract, and I could well lose not only them as a client, but a lot of money because their use isn't exclusive anymore.
Brand X: Sorry. We're using that in about 500 web ads to promote our "stay away from the gang life" messaging.
Boogie: You can't.
Brand X: Actually, we can. See, we did a diligent search for your work, and couldn't find you. Unfortunately for you, you can't stop us. We only have to make a good faith offer to you. We found this photo on Flickr, which we could have used when we did the same search, and this photo we found on iStockphoto, which would have cost us about $1. Since our only obligation is to come to a good faith resolution to this matter, we'll offer you five times that, or $5. Our accounting department will expect an invoice from you, and I'm not sure if you'll need to fill out a W-9, they know these things. We'll get you paid in 30 days.
Boogie: But by accepting $5 from you, that means I have accepted payment from you for your use, and I am thus violating the terms of the contract I signed with Nike.
Brand X: That's not our problem. You shouldn't have signed away exclusivity to these images in the first place. Don't you know there's really almost no such thing as exclusivity any more in this new Orphan Works Era.
****
Nike: Well?
Boogie: I can't stop them from using the photo. They're going to pay me $5 for their use of the photo, and I don't have a choice.
Nike: You're in breach of our contract. We paid you a lot of money for that image, both to create it, and for exclusivity, and now we want that our money back, plus damages for the dillution of our brand equity, and the confusion that those ads are now creating between their product and ours.
Boogie: But I didn't do anything wrong.
Nike: That's not our problem. You'll be hearing from our lawyers, and you better have a good one yourself, this is going to cost you.
***
How do you think the conversations will go for these:
That one above? That's Boogie's too, for the same campaign.
OR this one, also cropped (and note, the cropping can be done by the user, or by others and then the images can be released without owner information or company logos) that was Microsoft's ad with a photo-illustration of penguins, poking fun at Linux:
Or this one, also from Microsoft, where (before the white-line cropping) it was an ad for their Silverlight product:
I could go on, and on, and on. Licensing exclusivity to your work could place you in a legal quagmire that will shutter your business. This applies to magazine work, newspaper work, and, of course, ad work.
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 " Did I mutter, or stutter?" Said the author, arriving at the desk of the publisher. "I said I want my copyright back. "" Well," said H.J. Henry, "Y ou can't have it back. You transferred it to us back in 1981, when you were the naive and starstruck song writer that you were, what was it, 23?" The author retorted "yes, and I didn't know any better then. I am fifty now, and I know that you've made millions off my work." "Too bad," said Henry. "It's ours."Not so fast. Our now-wisened bard has a safety net that was built into the copyright law. (Continued after the Jump)
§ 203. Termination of transfers and licenses granted by the author (read it here)Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978...Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant;...The termination shall be effected by serving an advance notice in writing...The notice shall state the effective date of the termination, which shall fall within the five-year period....A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect...Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant...Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author... So, if you're a creative, whether it's photography, music, illustrations, text authors, or others, you can turn back the clock - in a way - and undo the transfer of your copyright.
"But I signed a work-made-for-hire agreement", you say.
Why do you think that almost all contracts that have WMFH in them, which reads:each of the images created is a "work for hire" under the Copyright Act; Has as a direct follow on:"...and to the extent that the images are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the images." It's because of what can statuatorily be considered a WMFH. The statute that defines copyright appears in Section 101 of the Copyright law. In it are enumerated several tests to determine if your work is even eligible to be considered a work-made-for-hire. They are:1) a work prepared by an employee within the scope of his or her employment;
2) a work specially ordered or commissioned for use as a contribution to a collective work
3) as a part of a motion picture or other audiovisual work,
4) as a translation,
5) as a supplementary work,
6) as a compilation,
7) as an instructional text,
8) as a test,
9) as answer material for a test,
10) or as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instruc-
tional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. The only category that the image might fall into would be "a work specially ordered or commissioned for use as a contribution to a collective work", but that's not really going to fly.
Creative Commons has created a CC Termination of Transfer Tool, you can read a great deal more about this in the Copyright Office's Circular #9, Copylaw.com has an article on How Authors (and their Heirs) Can Recapture their Pre-1978 Copyrights, and Lawrence Lessig wrote a blog post - Are you ready to "terminate"?, and Creative Commons also has a FAQ on the provisions thats worth a read. Fortham Law Review discusses this as it applied to Superman (and others), in this article, and the Copyright Office, in preparation for the coming tide of termination requests, wrote about it here.
So, there' more to learn about the copyright laws, and how it affects you. Consider what's written here, and linked here. Then, if you even think you created work back then, talk to a good IP lawyer about how to work though getting your work back. If you have work that was created even as late at 1988, you can file a notice - up to ten years in advance - of your intent to recoup your copyright. This law is like your Oil of Olay, but while it can't clear up those brow lines and crows' feet like that salve can, it can give you back those lost pieces of yourself that you sold when you were young an innocent, and didn't know any better.
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 As we consider the viability of Orphan Works, let's not look at the content of the bill, but rather, a statistical history of the last decade or so to fortell it's likelihood of passage this session. Here's a breakdown of the number of bills that were introduced into the House and Senate. Where it says "Enrolled", what that means is that, of all the bills introduced, that number is the only # that made it out of Congress to go to the President for his signature, which would make it into a law (or a revision of a current law.) The percentage of bills that make it that far are very small, and an even smaller sub-set of bills actually become law. I've included the last session under President Clinton, and all the sessions under President Bush. | Congress | House
Bills | Senate
Bills | #
Enrolled | %
Enrolled | # that
became law | Law % | | 106th | 5681 | 3285 | 719 | 12.7% | 580 | 10.2% | | 107th | 5764 | 3181 | 471 | 8.2% | 377 | 6.5% | | 108th | 5430 | 3036 | 590 | 10.9% | 498 | 9.2% | | 109th | 6432 | 4105 | 581 | 9.0% | 482 | 7.5% | | 110th* | 6040 | 2995 | 297 | 4.9% | 230 | 3.8% | With this in mind, in an election year, where there are many many other priorities for Congress, from the war, to healthcare, taxes, and so forth, and with about 40 or so days left where the Senators and Representatives are in Washington, and conducting business, how likely are we to see this bill pass, or die in committee? That remains to be seen, of course. No one has a crystal ball. The Senate concluded markup yesterday, with a few amendments, and voted it out of committee unanimously. Next stop, floor debate for both. Stay tuned to C-span for those debates. When we know when they're scheduled, we'll get the details for you. Hopefully, this will give you an idea as to the likelihood of passage and enactment. (Continued after the Jump)
* note: 110th is the number, to date.
Source: Library of Congress's Thomas resource.
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 So, why has the PPA come out in support of the House version of the Orphan Works bill? Well, at first, let me say, this post is made upon some educated assumptions and observations, as well as corporate tax records. I'll be speaking in broad brushes here, but it's still worth a read. This post is meant to try to make some sense out of something that just seems unconscionable - that is, the current state of the Orphan Works bills, and how anyone could come out and support them. First, every trade association has a fairly well defined membership. For example, you won't find many advertising photographers affiliated with the National Press Photographer's Association. So too, you won't find many school portrait photographers members of the Advertising Photographers of America either. That said, PPA did make an effort to take over the APA, and then set their sights on the ASMP, wanting to absorb one (or both) under the PPA umbrella. When neither of those efforts worked, they created Commercial Professional Photographers International. (Continued after the Jump)
The Professional Photographers of America, a not-for-profit association, has 19,000 members worldwide. The PPA's website notes that the PPA "began providing education and a sense of community to the photography industry since 1880". The organization is made up, in large part, by wedding, school portrait, family portrait, and special event photographers, and it is headed up by their CEO, David Trust.
I have come to know David Trust for some time, and he is doing a remarkable job serving his constituents. Yet, that service is not always beneficial to the wide variety of photographers and creatives outside of his purview. It's nice when his efforts benefit non-PPA stakeholders, but it's a nice fringe benefit to PPA's efforts, not always the driving force. However, the legislation PPA was engaged in working on behind closed doors affects all creatives, and that's where criticism of them lay.
Trust's congressional testimony, while technically accurate, is curious when he says "As the CEO of Professional Photographers of America, I am here today representing 33,000 professional photographers. This includes PPA and it affiliates, as well as three other organizations that have endorsed our testimony: the International Association of Professional Event Photographers, Commercial Photographers International and the Student Photographic Society."
It's curious because the " International Association of Professional Event Photographers" website's ownership records, the Commercial Photographers International - website's ownership records, and the "Student Photographic Society" - website records, all list the same address in Atlanta, the same home of PPA. In fact, the student organization's website records list PPA as the owner. However, you won't find disclosure on the CPI, IAPEP, or others that they are owned by/related to PPA. Also located there is the Evidence Photographer's International Council, these organizations which, while on the surface, appear to be separate, are in-fact, a part of a web of organizations, the Alliance for Visual Artists, or AVA, their splash page website is here. So when PPA says something like "we're speaking for all these organizations", as if they have assembled a broad array of groups, they're more accurately saying something like "we're speaking for all of the divisions of our organization" or something of that nature. Their headquarters are in Atlanta Georgia, as you can see here on the Secretary of State's website for the state, and their 2008 registration with the state can be seen here. A review of their records reveals that PPA is actually a Delaware Corporation. Below is information (as of today) from the Delaware Secretary of State's website:
 (click the image to see the full record from the Delaware database). Unfortunately for PPA, Delaware's records indicate they are delinquent in their taxes. Now, this may be an error, and we should allow for that, but the status date is from the beginning of March, so who knows.
With all of this in mind, how does this affect how the PPA worked to get a carve-out that protected the best interests of it's members?
First, let's look at what the PPA's members are most concerned with when it comes to copyright - the unauthorized duplication of their member's images by their clients, and their clients are most often individual people, nor corporations, ad agencies, and so forth. Again, remember, I am painting with a broad brush here. A PPA member almost would never get statutory damages from a wedding client, for example, for the infringement of their copyright when they made copies at Wal-Mart. Further, this legislation would not protect photographers, or the PPA, from pursuing claims against the Wal-Marts and one-hour photos of the world who did the infringing at the request of the customer who wanted a 5x7 from their wallet-proof photos. PPA did get a carve-out for "useful articles":(d) Exclusion for Fixations in or on Useful Articles- The limitations on monetary and injunctive relief under this section shall not be available to an infringer for infringements resulting from fixation of a work in or on a useful article that is offered for sale or other distribution to the public. This means keychains, t-shirts, coffee mugs, and so forth. In fact, it could well also include an 8x10 school photo duplication, wedding album, and so forth. Things that are revenue producers for PPA members. Thus, Trust did a great job for his members, but those who don't need this carve-out protection don't benefit from Trust's place at the table.
Many in the photographic community are spending a great deal of time criticizing PPA and it's leadership, including me, because it was expected that PPA would represent and defend all photographer's interests. Perhaps this expectation was misguided. Perhaps, mis-understood?
PPA specifically stated to the ad-hoc group Imagery Alliance that it would negotiate on behalf of all it's member groups, when it was written to IA members:"We are reading everything that is being written by each of you. It is incorporated into everything we discuss in the room. There is nothing that you are concerned with that isn’t being covered." Moreover, they requested that all the other IA groups cease their own individual advocacy efforts regarding Orphan Works because it made everyone look like they weren't unified, and further, they asked all the IA members to ask their own membership to cease writing to their representatives.
As we arrive at half-time in this real-world-real-consequences game, it seems that the idea that if you can't save everyone, then save those to whom you answer to. PPA, and Trust did just this. It was wrong for House staff to preclude other organizations from the table. Photo organizations outside of the negotiations certainly placed their trust in those at the table to negotiate for everyone, yet those not at the table either fell (or were thrown) under the bus. Trust noted who he was speaking for in his testimony, and it wasn't NPPA, APA, ASMP, GAG, Illustrators, or anyone else. It was PPA, and it's subsidiary, or sister organizations. PPA got what it needed. Those not benefiting from their efforts are right in being very angry, dismissed, or feeling cast aside. Sure, it would be nice to have the bill done properly and those at the table looking out for everyone, but that's a bit altruistic.There is an old saying, usually attributed to firefighters, doctors, and others who face a seemingly insurmountable task of trying to save everyone. "save who you can, and mourn those you could not help."
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 So, we have the bi-cameral process to thank for the duplication that occurs when the House and Senate seperately consider a bill. We have circumstances like the American Libraries Association supporting the Senate version, the ASMP and PPA supporting the House version, and all sorts of other constituents taking up various other positions for or against. Yesterday, the Senate took up about a dozen bills during their markup (aka business meeting). At around 10:15 or so, an informal request was made of Sen. Leahy, the bills' sponsor, to "hold over" the bill until next Thursday. Why is it important that it was informal, and why was it important that Sen. Leahy noted this? (Continued after the Jump)
When a bill is introduced to the committee after being referred from the Senate, where it got it's number, any member of the committee may request that the bill get put off to the next meeting. Generally, this allows the members more time to review and consider the bill, and to hear from constituents and other interested parties (i.e. the ALA, ASMP, PPA, and so on). Next Thursday, the only real way the bill can be held-over again is if the bills' sponsor - in this case, Sen. Leahy - makes that request. The idea is that you don't want any member trying to continue to put off a bill that should be reviewed.
What does this mean to you? Well, if you're so inclined, you have another week to reach out to committee members and make your voices heard. ASMP urges you not to do that, in part, in their recent message - "Stay cool on Orphan Works": Please do not buy into the hysteria that you are hearing...I assure you that we are working at the table to make these versions of this bill as good as we can. We are working to influence changes that can greatly effect the final versions...There may be a time when we do want you to contact them with a specific message, but now is not the time." APA writes that "...APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns.". NPPA, in their piece "NPPA Cannot Support Orphan Works Legislation", wrote: "'We cannot in good conscience support this bill,' NPPA president Tony Overman wrote...Overman urges photojournalists who oppose the bill to immediately write to their representatives.", And PPA has finally made a statement on the subject - "Expecting a worse fate if we wait until 2009, and recognizing that it is possible to gain some small improvements yet, PPA is generally pleased with the proposed bills’ direction. We are grateful for significant improvements made on behalf of photographers and artists. We stand ready to support what we hope will be the very best legislation possible—allowing us to prepare for the future copyright fights that are sure to come. "
In addition, the SAA (Stock Artists Alliance) makes concrete recommendations that would make OW legislation more paletteable here.
Meanwhile, on the non-photographer's side of the table,
The American Library Association is urging it's members (here):"We need you to ask members of the House and Senate to support copyright Orphan Works legislation (H.R. 5889, S. 2913) that does not include a “dark archive” provision. While we strongly support legislation resolving the orphan works problem, we recommend the Senate version of the bill over the House version. As time is running out, we ask that you contact your Senators and Representatives (with priority given to members of the Senate), to communicate the library community’s enthusiastic support for orphan works legislation that does not include a “dark archives” provision."
Public Knowledge writes here:"Two orphan works bills were introduced to begin to bring balance back to copyright law...Having a bill out there with specific language helps a lot. Some of the visual artists are...already lining up to take their pot-shots at the bill. They’ll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn’t. We’re going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress."
The Association of Research Libraries wrote: The Library Copyright Alliance (LCA) consists of five major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. These five associations collectively represent over 139,000 libraries in the United States employing 350,000 librarians and other personnel. The associations participate in the LCA to address copyright issues that have a significant effect on the information services libraries provide to their users....We write to express our appreciation for your introduction of H.R. 5889, ...However, we wish to state in unequivocal terms our strong opposition to the notice of use filing (the so-called “dark archive”), ...As we discuss below in greater detail, the requirement of such a filing will dramatically limit the utility of the legislation for libraries and other important stakeholders. It seems that there's going to be a great deal of writing to Senators, and Representatives on this subject. For the Senators on the Judiciary Committee, you have at-least another week to write. Then your correspondence would be best sent to those officials (House and Senate) who represent you, unless the bills go back to markup again. NPPA's piece concludes in noting, about the 2006 House version - "In 2006 that year's orphan works bill died in committee when its sponsor, Texas Republican Rep. Lamar Smith, withdrew the bill from consideration at the committee’s final mark-up session for the term. Smith told the committee that he didn't see any reasonable chance that the the Copyright Modernization Act of 2006 (HR 6052) would be signed into law during that year's session." There's not too many in-session days left in this term, so this could well be the final disposition of the 2008 bills.
If so, there's always next year, and they say - "the third times' the charm." Who'll get the brass ring next time?
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 Well, it appears that the House Judiciary Committee has opted not to live webcast the markup. has, after all, decided to webcast the markup. We'll live-blog it for the next hour or so, since we're in between assignments, and wanted to get a listen to who's saying what. Since we're not set up for liveblogging with an auto-refresh feature, you'll want to hit the 'reload' button every three to four minutes to see what we've added. (Comments, if any, after the Jump)
We're arriving there shortly.....
2:02 - We're here. The comittee is still discussing retail gas prices - the hearing before the one on Orphan Works.
2:08 - still discussing oil. Hearing wrapping up shortly. Feels like it will wrap up shortly.
2:10 - previous hearing concludes. Members switching out, should begin shortly.
2:14 - The House has just called a five minute vote. Those in charge of the webcast are indicating that they WILL be webcasting the markup. It may be as long as 30 minutes before they start.
2:21 - No members in the hearing room yet.
2:24 - Doors open. Members of the public interested in Orphan Works are filing in.
2:28 - An additional inquiry made about Live Webcast link. Technicians indicate it will be on the site "shortly."
2:29 - Link now active. You can get to it from THIS LINK as well, or go direct from the committee's website.
2:31 - 13 minutes remain in another vote that was called on the House floor.
2:36. 8 minutes remain in the floor vote. The microphones were just tested.
2:47 - the room is almost full, staff is behind the rostrum, but there are no members here yet.
2:57 - I can see the webcast. It's streaming the eagle seal that is on the wall in the back of the room. No members yet.
2:59 - another vote has been scheduled.
3:06 - one amendment is being discussed here, before things get started.
3:08 - 12 minutes remain in another House vote. No members yet, but at-least one amendment is confirmed, in the behind-the-scenes scuttlebut going on here.
WIth that in mind, you are best served being returned to your regularly scheduled programming - the live webcast. Please direct your browsers to the House Judiciary Committee's web page for the webcast.
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Whether you're for it, or against it, there's nothing like learning about the process that goes into lawmaking. Usually, you'd likely turn a blind eye to how things happen, but this is going to affect you, so I encourage you to take a look. The House bill that was introduced is going to be debated today in what's called a "Markup session", at 2pm Eastern time. The House Committee on the Judiciary is scheduled to amend and re-write the Orphan Works bill, and, at the end of the day, the Chairman, Howard Berman will either take an informal tally, or have a formal vote, on the bill. If he doesn't think he has the votes to move the bill forward, without a big fight, he'll likely table the bill, and it will do what's called "die in committee." In an election year, people tend to save their political might for bills that will make them look good in their home districts, and easy fights are far better to move through than those where there are opposing parties. The Chronicle of Higher Education is reporting that the American Library Association favors the Senate Bill over the House Bill, and "...is urging its membership to contact their senators and representatives in the U.S. Congress and press them to support the Senate version of a bill, S 2913, that would make it easier for people to exploit orphan works...A comparable bill in the House of Representatives, HR 5889, is flawed, the library group states, because it includes a “dark archive” provision that would require people to notify the U.S. Copyright Office of their intention to use an orphan work." Check out the ALA Action Alert by clicking here. (Complete post, after the Jump)
Here's a short (but informative) FAQ on how a bill becomes law - click here. To check out the Schoolhouse Rock story on how a bill becomes law, for a brief 3-minutes of nostalgia, click here.
Here's a more in-depth piece, worth reading, that explains, in part:MARK UP: After public hearings have been held the committee meets to discuss, revise and vote on the bill. A committee can defeat a bill, hold up action on a bill for weeks, amend it beyond recognition, or speed its way through the legislative process. The vast majority of the more than 10,000 bill that are introduced in Congress each year die in committee for lack of support.  When we contacted the committee earlier today, as there was not a "view live webcast" button for this session of the committee, we were assured that there would be a webcast, since the markup was taking place in the full hearing room. If, for some reason, it's not there by around noon or 1pm, I encourage you to call 202-225-3951, and ask why you can't view the webcast of the markup. If no one calls, they won't bother if they weren't going to broadcast it. If many people call, when they weren't going to, they may well change their minds. Check this link for the details.
It's been said that you never want to see how sausage is made. So too, is it often times painful to see how legislation is made. So, take a gander at the proverbial "sausage factory" that takes place on Capitol Hill. It'll be an eye opening experience, whether you're for or against it.
How this bill ends up will be historical if it is reported out of committee, and historical in that it will serve as a basis for next session's version. Either way, it's history in the making.
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 There is a great deal of information floating around the internet about the Orphan Works legislation that is now pending before Congress. I've received many many letters on the writings I've posted here from people of stature, or of note who wrote things from " articulate, balanced and makes some great points", to " borders on 'egregious'", to " you are simply wrong on many of the facts." While I stand by the content of the original piece, and no one has pointed to anything in my post that was inaccurate, to date, for now, I'd like to direct you to several places so you may become more informed, but you can expect to hear more from me (much more) on the subject moving forward, and down the road. It is absolutely critical that people take away from this discussion, debate, and discourse, that reasonable people can - AND DO - disagree. Let us all move forth with this in mind. (Continued after the Jump)
There are, to date, two photo trade organizations that are in support of the current form of the House bill - ASMP, and PPA. Missing in a position (as of now) are NPPA, APA, and EP, although NPPA wrote an article here that outlines ASMP's position, without taking a position of their own. Although, it could reasonably be argued that NPPA's citation of the ASMP position without taking a formal one of their own takes a step in the direction of support of ASMP's position, but that remains to be seen. Neither ASMP or PPA supports the Senate version - ASMP's language to make this point is "We believe that the Senate version could still benefit from some changes." Ok. So, I encourage you to read what ASMP has written. Understand, as I misunderstood - I thought that the ASMP's comparision on their site is from the 2006 version of the bill, to the current version, which I mistakenly thought would demonstrate where negotiations had occured to benefit copyright owners in the new bill. However, the comparison is between the pre-bill Copyright Office ideas that they sent in their proposal to Congress, and the current version of the bills under the microscope. ASMP's take on the bill (I haven't seen PPA's yet), and their arguments for it, should be read here:
Update on 2008 Orphan Works legislation, which notes, in part:"After months of discussions among Congressional staff and the parties with an interest in this legislation, bills were formally filed...ASMP believes that, on balance, the House version is a bill that photographers can support. We believe that the Senate version could still benefit from some changes...As with any legislation, one could always wish for more favorable terms. Realistically, though, the House bill is about as good as photographers are ever going to get. If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership." From the Stock Artist's Alliance, comes their position:"The Stock Artists Alliance has just published extensive commentary about Orphan Works as a resource for artists and other members of the visual arts community who will be affected by this legislation." Public Knowledge has a good read on Orphan Works, They state: "Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works...the Senate bill is what I’ll call the “clean version.” It’s language is at the root of the House bill without the additional gimmes for owners. It has the characteristics of what I described above and, in PK’s opinion, would need very little tweaking, if any. One provision we would like to see is in the registry certification requirements, that these registries be free for public searches and machine readable." Duke Law's Center for Study of the Public Domain has a good read on the perspective from the side of the potential users of orphaned works:The costs of an inadequate system of access to orphan works are huge: needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication...The difficulty of access to orphan films is a matter of crisis because these works are literally disintegrating. At a time when digital technologies allow for more sophisticated and cheaper restoration and distribution of old films, uncertainty about copyright status has impeded restoration efforts. Plagarism Today:"my initial thoughts are that the bill’s chances of passage are slimmer than many think...it also has very little support from copyright reformists, such as Professor Lessig, who deal heavily with the orphan works issue. The bill has no real champion among the people..." Larry Lessig, generally speaking on Orphan Works, is worth a read:
Copyright Policy: Orphan Works Reform:my op-ed in the NY Times...proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain...The Copyright Office's report is brilliant. Its proposal is less brilliant. I think this both goes too far, and not far enough...Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders..."
Keep reading. I will write more, ASMP will write more, PPA will probably write something, APA will write something, and the dialog will continue. The worst thing that you could do is to just march in lock-step with someone else's position on this because so-and-so said so. listen and pay attention - this really will affect your lives for decades to come.
Remember though - we have about 47 effective working days for members of the House and Senate to take testimony, debate and discuss in committee, schedule for a floor vote, debate on the floor, in both chambers of Congress, vote, appoint conference committee members, hash out a final compromise version, re-schedule the conference report for a vote, debate it, vote, and send it to the President for his signature. Otherwise, these bills die in this session of Congress, and must be started - essentially from scratch, next January.
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 The orphan works dilemma needs to be solved. Just not this way. Museums and libraries find their missions frustrated by an inability to identify and contact rights holders. As a result, important works are unavailable to the public, and aging, disintegrating works cannot be preserved by duplication, which might violate the rights of unknown rights holders. Preservation of these works - for non-commercial uses - is essential to the protection of our cultural heritage. All that it would really take would be a modification of the "fair use" provision of current laws to allow for preservation, and you would immediately have language that would appeal to the vast majority of museums and libraries. Those that don't support this notion, probably have more than preservation in their plans. This past Sunday, as I normally do, I watched 60 minutes. During this remarkable piece on Justice Scalia, when asked about his scathing attacks on the remarks of his fellow Justices, he said ""I attack ideas, I don't attack people. And some very good people have some very bad ideas." My approach shall be in this vein, while writing. I know that there are some people out there who hold a different opinion than I do. Some in the leadership of two major trade associations, for instance. The fact that they have a larger pulpit than I do, and direct access to legislators doesn’t make them right, it just makes them, well, louder. Fasten your seatbelts, it's going to be a bumpy ride. (Continued after the Jump)
The bills as presented ( S.2913 and H.R. 5889) are a photographer’s worst nightmare, and do much more harm than good. If you have not read them yourself, take the time to go through them, they may well become a dictator of your future. Despite the incredible damage that these bills will reap on the profession of photography, the house bill (and not the Senate version) has been strongly endorsed -- as-is --- by the ASMP and PPA - both of which I am a member of, and an active supporter of. These two leading organizations are charged with acting in the best interests of their professional photographer members. Apparently, these endorsements appear to have been made out of fear. Fear that no matter how horrible these bills might be for photographers, future bills may be worse. Sort of like jumping off of a cliff head first onto the rocks below, out of fear that you might one day slip and fall off of that cliff. Only in this instance, every photographer in the country will go over that cliff with them.
A true, wholesale re-writing of the bills is necessary. How many ways can you cook liver and make it taste good? Instead, send this innard back to the kitchen, and get some meat on the bones of a reasonable piece of legislation that serves not only to benefit and protect creatives, but gives those entrusted with the preservation of our cultural history the tools they need to carry this out with a limited amount of liability.
To quote the injured and disenfranchised sheep in the movie Babe, the secret password that the pig needed to get the other wayward sheep to listen, he said "Baa-ram-ewe, baa-ram-ewe. To your breed, your fleece, your clan be true. Sheep be true. Baa-ram-ewe." It's unfortunate that our Babe seems to be missing from the picture we're all staring in. Sadly, it's more like A Nightmare on Elm Street, than that of the lovable Babe.
One of the major problems is that the proposed orphan works legislation - and I stress 'proposed', this ain't law, not by a longshot - applies not only to older images, but to images that you created yesterday, and to images that you will create today and tomorrow. Worse yet, the legislation does not limit usage to libraries and museums, and does not limit usage to non-commercial use. That’s right, the orphan works legislation, if passed, will allow anyone to use your images for almost any purpose, including advertising, editorial, product packaging, television, and just about anything else, without your advance permission. The only requirement is that they fail to find you before they start using your image. The only limitation on use, apparently the result of lobbying by organizations representing retail photographers (wedding, portrait, sports, school), is a prohibition on the use of images on “useful articles” (keychains, coffee mugs, etc.) which are increasingly a cornerstone of the retail business. Interestingly there is no prohibition on the use of orphan works on packaging for useful articles.
Don’t be fooled by the fact that the legislation indicates a date of 2013 for the first use of orphan works. A careful reading reveals that the legislation will allow use of your images immediately upon the certification of the first two registries to be certified by the copyright office. Such registries could be launched and certified immediately upon passage of the bill this year, allowing anyone to use your images even before you have an opportunity to register them. Under these bills, you have no right to stop anyone from using your images once that usage begins, and you lose the right to sue for copyright infringement, even if you have registered your copyright with the US copyright office. Some classes of users are not required to pay you any fee if and when you discover the unauthorized usage. Others are required to pay you a reasonable fee, but only if you discover the usage, and even then, the user will have the upper hand in determining what the user believes is “reasonable.” As you might imagine, most users will point to the millions of microstock images available for $1.50 each, allowing unlimited usage.
There is an Armada of pirates on the horizon, and it's full steam ahead, with the world as their oyster, having disembarked from the US. Instead of Revere's midnight ride into history, it's Tony Sleep, shouting from his UK perch - "the American's are coming...", and the entire world needs to wake up from their slumber and heed this call.
Orphan works legislation allows anyone in the US to use any image by any photographer or stock agency (regardless of nationality) for any purpose (with the exception of “useful articles", aka "tchotchkes ") without permission of the rights holder, simply by searching for and failing to locate the rights holder.
Instead of calling these users, let's call them what they are - infringers. They remain infringing upon the rights of the image creator, but they are like the bulletproof monk, except they have the more timely title judgement-proof infringer, or JPI for short.
Once the JPI commences use, there is no means by which to stop that JPI from continuing to use the image, even in competition with the photographer or rights holder. It's like giving Fat Albert an all access pass to the buffet, with everything from book covers to advertising, billboards and electronic use, even if the photograph was made yesterday.
White supremacists could find a copy of a one of my photographs on the web, from which my name and contact has been stripped by a third party, and do their diligent search, maybe even post a message in the local paper or on Craigslist in the "missed connections" column, and then when no one responds, use it on the cover of a "white power" poster, adorned with swastikas, and I'd have less recourse than a virgin after-the-fact, to reclaim my innocence and purity.
In fact, my fellow photographers could claim my images as their own, modifying them or photo compositing them into their own works.
The work of every photographer around the world would be fair game under the orphan works laws. Further, we all must register with registries certified by US Copyright office, or risk the unencumbered use of their images throughout the US. Why don't we just get a number tattooed on our forearms, so when we die, there's a web page that the coroner can go to, with a link to the registry, so all our copyright registrations have our date of death auto-updated? Oh, wait, maybe the idea of a tattooed number on one's arm might be equated with something else that's heinous. Let's re-think where an indication of our registered intentions should be best displayed. Over the comode perhaps?
When a rights holder discovers that an image has been infringed by a JPI, s/he must approach the JPI, prove ownership of the image, and request reasonable compensation.
The determination of what is “reasonable” is left to the JPI, not the rights holder, as the rights holder loses all rights to sue for
copyright infringement even if the rights holder has registered her work with the US copyright office far in advance of the usage.
If offers to me for re-use are any indication (photo credit, $50, $100 are recent laughable offers), reasonableness is in the eye of the JPI, who doesn't want to pay anyway! In the age of microstock, when determining reasonable compensation for any usage, users will be able to point to millions of images available for $1.50 (and by the time the law is activated, these same images will be available for $0.50, and later, $.05).
These market rates for unlimited usage of images will also directly bear on the determination of reasonable compensation. Further, the rights holder is entitled to the profits that the user made from the use of the image, but only if the rights-holder can prove those profits, which is 180-degrees from the current copyright protections, which require that an infringer must prove what of their profits wasn't as a result of the infringement! Since there is no “discovery” provision in the legislation that would require the JPI to provide the rights holder with any information (accounting, correspondence, copies of all usages), it will be virtually impossible for any rights holder to determine the extent of the usage and the calculate the profits made by the user.
While several trade organizations (PPA, and ASMP among them) have taken to the table valiant ideas, they have been premised on the notion that we need to save whatever morsels of our rights we can, rather than standing firm until truly fair compromises have been made.
Why not stipulate, for example, that anything that appears to have been created prior to, say, 1950, be eligible for orphan works protection? Or perhaps, it's a rolling year, as in "any image which appears to have been made 30 years prior to the date of it's intended use, is eligible for orphan works protection." Or at least, to require far more stringent searches and limited usages for any image that reasonably appears to have been created within the last 30 years. This surely would provide substantial and sufficient protections to cultural centers looking to preserve degrading imagery. Why, instead of publicly coming out in support of the proposed legislation, didn't these organizations, in exchange for the current slate of concessions, simply remain neutral in their positions?
One example that I expect came at the request of the Professional Photographers of America (PPA) is the notion of "useful articles", which I refer to as tchotchkes above. Yes, yes, I know that these are substantial revenue generators for their members, but the endorsement (as opposed to a lack of objection) by two major trade organizations sends the wrong message to Congress. It's suggesting that this legislation will benefit photographers .
Instead, this legislation falls into, what the all-you-can-eat buffet patron Comic Book Man on the Simpsons, says - "worst show ever." Certainly, this legislation is among the worst - ever - for photographers. It may even be the death blow for the many of the independent photographers, already faced with the most difficult marketplace in the history of the medium.
In a standalone position, the APA submitted comments based upon the last legislative sessions' bill, that is well worth a read. It was submitted at the request of the Senate Committee on the Judiciary, on page 33 of the record of the 4/6/2006 hearing.
I need to restate again - the idea of a limited orphan works bill is a good one. Just not this one. Really, not this one. The problem is in the legislation, which makes every work, new and old, a likely orphan, as soon as it is distributed, even if the rights holder includes a full slate of copyright information in the image metadata.
The notion of a small claims court for copyright infringement, as tacked onto the legislation, is a concept first proposed by PPA in previous incarnations of the negotiations, which would allowing wedding photographers to make a case in small claims courts against their customers who make prints of wedding and portrait photos without the photographer's permission. However, this proposal will be a disaster if implemented.
Though it is proposed as an option, your odds are better than betting on both red and black that it will be the defacto method by which copyright claims are required to be resolved. Any half-wit knows that the discovery process and expert testimony are among the most critical elements of pursuing a copyright infringement claim. Since the small claims systems have no discovery process to speak of (concept: "get 'em in, get it decided, get 'em out), other than an unsupervised exchange of paperwork (think honor system for thieves), and there is literally no way to enforce any level of compliance or demands for disclosure.
The stock agency giants will also rush to profit from this legislation. We will see clearing houses (think late night law firms
with the "if you've got a phone, you've got a lawyer" tag line) that will go through the motions of “reasonable searches” on millions of images and will offer up subscriptions to orphan works collections. An automated process for divesting tens of thousands of images at a time will ensue, and will also flood the registries with superfluous entries and stipulations of diligent searches performed, when none was honestly and with care and true consideration, actually done. Since large stock agencies (Getty, Jupiter, Corbis, and so on) will not be affected in any significant way by this legislation, they have an
upside here as well, and further they are easy to find.
Next up - "Orphan Works Collections", that not only are sold for profit, but moreover, offer limitations on any liabilities for these uses! Just as now we are charged a "usage fee" for public domain images (think: white house hand-outs of presidential events) which are still based upon usage, when we should be charged a flat "research fee" for these images, there will be an “orphan works search fee” rather than a "license fee". Right now, there is no provision in the legislation that would prevent such profiteering. We will see all types of websites , offerings and commercialization. It's even happening now.
 Joe Keeley, previously the lead House Copyright Committee staff
member , has recently registered www.orphanworks.net (check that here) . Obviously, a little lightbulb went off in his head, when he noted when he received the APA letter, where, on March 15, 2006, APA cautions:“ Within two weeks of the issuance of the Copyright Office Report on Orphan Works, nearly all of the domain names associated with orphan works were registered by commercial interests, in preparation for the profit-taking that will result if the legislation is passed without significant revision. Among them: orphanart.com, artorphanage.com, orphanedphotos.com, findorphanworks.com, and dozens of others.” "...nearly all..." must have been an attractive concept. What was missed, was www.orphanworks.net, which Mr. Keeley, at some point after receiving that letter, registered. One must presume the best, and that it was done following his departure from his official duties, but, well, if nothing else, it appears to me to be bad form, at best.
Further, any online database allowing browsing of images that are potential orphans will quickly become one-stop-shopping for anyone seeking to use images for free. Knowing that these images are already deemed likely to be orphans, users will use these databases like a candy store. Any database at which users are required to list their intent to make use of a potential orphan is entirely useless to rights holders. Small business owners do not have the resources to monitor even one such list on a regular basis, let along monitoring dozens of lists, each with potentially hundreds of thousands of orphan works listings, to which new listings are added daily by the thousands.
Let's take a look at this from a legislative standpoint:
It's not a good sign when a bill is submitted with only 3 co-sponsors, for a total of two from each side of the aisle. Two don't count as substantive supporters, since they are the Chair and the ranking member of the committee. The second Democrat is John Conyers, and the second Republican is Lamar Smith. Want to know more about sponsors and co-sponsors? Click here.
If you really want to dig deep (which we love to do), check out this report from Legislative Studies Quarterly about the predictive outcome of a bill's passage based upon the number of sponsors a bill receives. While written about state legislatures, it's insightful, since little other formal research has been done. Those who have worked on Capitol Hill in a members' office (as I did, for a spell) know that the more the sponsors - especially upon introduction - the higher the likelihood of final passage. In other words, the report validates what staffers (and former staffers) know empirically.
To the suggestion that this is the best bill we can hope for, let's take a peek inside the proverbial locker room before the game. The current lineup of players on the committee suggests that there are others on the committee that are going to be more agressive. This is the suggestion we are lead to believe, and, were this mid-session, I might be inclined to consider this. But it's not. It's the end of a session, and there will be a new session come January. It is expected that Jerold Nadler, a 7th term member of Congress, already on the Judiciary Committee, is in line to head up this sub-commitee next session. Nadler's district includes much of the creatives' communities in New York City, from SoHo, to Chelsea, as well as TriBeCa. You can bet his constituency won't take too well to a bad OW bill.
With this bill now presented, much of the committee's work is done, however, your work has just begun. If momentum builds up, from constituents opposed to this bill, it will never come to a vote. And here's how it works: WHENEVER a constituent writes, it gets chalked up as a YEA or a NAY for the bill. The more NAY's the bill gets, the less likely the member is to vote for it, and don't under estimate the importance of a NAY. Further, if you're a constituent, that weighs even more heavily for the member.
Don't know who your member is? visit here to find your own member just by using your zip code. About four clicks of the mouse, and you are corresponding with the person that your community (or state) elects.
That said, writing to the committee members, suggesting that you will work, as a citizen, vigorously to oppose this legislation, with your own representative, and encourage your colleagues to do the same, will let them know that there are not smooth seas ahead.
The following e-mail links are the most reliable information we can find for the committee. If the "send an e-mail" link doesn't work, click the "website" link, to visit their site directly.
When using these links, feel free to change the subject line, but make sure you include the bill # in it. Also include your contact information in the e-mail. Write something cogent, and be concise. Don't ramble.
If, after reading this, you still want to support it, then by all means, engage yourself in the democratic process, and click the "SUPPORT" link below, if not, click the "OPPOSITION" link below.
House Committee on the Judiciary
Senate Judiciary Committee
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