ASMP, Orphan Works, And Agendas

As Orphan Works is set to die this session of Congress, it is time for creatives to re-group, and consider our strategies, alternatives, and with whom we may align ourselves when it rears its ugly head next session of Congress, that begins in January. More importantly, we need to know who we can trust for advice and counsel.

ASMP has, for a very long time, done many good deeds for photographers, and I in large part, support what they're doing and continue to do so. Yet, as we all love Apple Computer and the wonderful things they do, we still are upset with them over their $14m they had to pay in settlement of their back-dating of their stock options. So too, I (and many others) are fans of ASMP, but are concerned about the issues I'll outline below. Thus, it is of value to open these concerns up for discussion and debate. I am of the opinion that there needs to be much more transparency in what ASMP is doing - towards and with its' members, and their communications with the community as a whole.

One of the things that I have problems with, is impropriety. Another, is even the appearance of impropriety. And, when ASMP came out and were vocal in their SUPPORT of the House version of the proposed Orphan Works legislation, the news of that caught me off guard. In fact, it threw me for a loop. Why, would they do that? Why not take a position of neutrality? What was their motivation?

Their stated motivation was that if we didn’t accept the current version, next session’s version was going to be worse. They argued, that it was the best we could hope for. Then, during my discourse with ASMP’s General Counsel Vic Perlman on stage during the Microsoft Pro Photo Summit, I outlined a few of the big problems I had with the version that ASMP said couldn’t get better. Then, Vic spoke, and said that a number of my concerns would be resolved during the next markup.

Come again?

The version you said couldn’t get better, and thus must be supported, now is better, somehow?

Yet, ASMP continued to support a bill that every other creative trade organization either was against, or neutral on. How could this be? Why?
--------
Editorial Note: We provided ASMP with an advance copy of this article just under a week ago, for the purpose of their providing an adjacent response to these concerns. Their response follows at the end of this article.

(Continued, with ASMP's response, after the Jump)

ASMP’s reputation, in my mind, was tarnished a bit this Summer when it came out that they had not only received a $1.3 million windfall of revenue paid on the backs of artists’ copyright licensing income but that the only reason they revealed it was because of a pending news article by Photo District News. This was, to me, at least an appearance of impropriety. This windfall of revenue came about right during the time that ASMP was making the case for a higher dues to it’s members. The argument they made was that the windfall couldn’t be used for organizational purposes, but for efforts that benefited all photographers, ASMP member or not. This would include, for example, educational programming that was open to all comers, and which ASMP has been trying to make an increased effort to produce. However,, as ASMP’s annual budget includes funding for educational programs and other activities that will now be funded instead by the windfall, it would seem that the basis for the dues increase no longer exists. For this reason it is troubling that asmp quietly received, deposited and held these funds for many months, while at the same time pleading poverty to its membership. Seeking a dues increase from financially stressed professional photographers while sitting on a giant pile of money just doesn’t seem right.

A month or so back, I wrote about UPDIG – an ad hoc group of photographic organizations. (UPDIG - Why It Is Important, 7/19/08) Yet, it seems that ASMP’s position has changed on UPDIG. At first, they were a member of the ad-hoc consortium, then they took the position that UPDIG isn’t a working group, it’s just a paper, a report.

And the answers are not yet forthcoming, about why ASMP would take a position so contrary to photographers’ best interests in supporting Orphan Works.

Then it came to me.

ASMP submitted a request for funding to the Library of Congress:

“Request for Funding Under the Preserving Creative America: Digital Content in the Private Sector program, The Library of Congress”

In it, they essentially wipe out of existence every other organization that participated in the UPDIG group, when they wrote in the request:

“The American Society of Media Photographers' (ASMP) Digital Standards Committee has developed and released a set of best practice guidelines for digital photography, the Universal Photographic Digital Imaging Guidelines (UPDIG).”

Really? ASMP did that wholly on their own? According to the ASMP website

“This project is building upon the Universal Photographic Digital Imaging Guidelines (UPDIG) developed and maintained by the UPDIG Coalition, a group of representatives of the signatories to UPDIG. UPDIG is a worldwide consortium of digital-imaging professionals, trade groups, and manufacturers dedicated to the development of standards for commercial digital photography”

, and the UPDIG.org website – “The Member Associations of UPDIG Welcome You” followed by a list of them all.


Again, the appearance of impropriety turns up. In this instance, that the ASMP has taken a position that the work product of the collective group of UPDIG is wholly their own, may place them in legal peril of having to share the award with the other organizations who also contributed to the guidelines, and who will surely contribute to future evolutions of the guidelines. No where do they refer to any other partner organizations:


Then, I hit a full-stop when I read the following part of the original request:

“Proposal:
The purpose of this project will be to expand the UPDIG standards with the goal of determining and developing refined production workflows, archiving methods, and best practice guidelines for digital photography based on image usage and capture methods.

Included will be an examination of the following:

• Current methods of archiving digital photographs.
• The compatibility of various RAW and digital photographic software and their ability to read, write, and preserve digital photographs and their associated metadata.
• The advantages and disadvantages of various consumer and professional digital asset management applications.
• The advantages and disadvantages of different professional digital camera systems including capture formats, raw file processors and storage methods for digital photographic assets.
• The capacity of these workflows to work within studio and location photography environments.

These revised and expanded UPDIG guidelines will be published as a website open to the public. The adoption of the guidelines will be promoted to the public through programming at industry trade shows and a nationwide series of training events at ASMP chapters, trade shows, and educational institutions.

Additionally, this project will work towards the development of an online national copyright registry of digital images which will be integrated as part of UPDIG workflows. The copyright registry will be established via a series of meetings with the U.S. Copyright Office and industry representatives, and will be promoted through UPDIG training sessions and print ads in industry publications.”

Come again? ASMP, in it’s proposal for funding, states they will establish a registry? A registry that is a part of the bill in Congress they are promoting heavily? In fact, ASMP, and PPA asked all other trade associations to allow ASMP to speak on their behalf in extended closed door negotiations with legislators and with the proponents of orphan works legislation. All other organizations were shut out of the process and were thus kept unaware of the proposals and compromises made by ASMP, in negotiating the resulting legislation.

The proposal concludes with the timeline – “Development of an online copyright registry will take place throughout the project timeline, with one year devoted to negotiation and meetings with the US Copyright Office and selected industry representatives and 2 years of aggressive promotion of the registration program in various industry journals and periodicals.”

(note: coloring of text red added for emphasis)

Yet, how is it that this language (the language regarding a registry) is missing from the proposal that ASMP is circulating to other UPDIG members when they ask for a copy? (http://www.asmp.org/pdfs/NDIIPProposal.pdf) It is also missing from what they provided to their own board. We have learned that the Library of Congress’ feedback to the ASMP was that they would not, or more likely, could not, participate in funding the registry that ASMP proposed. Thus, the proposal was granted, without funding for the registry.

Here’s the language that ASMP is got funding for (it's a part of the full document, linked above):

Proposal:
The purpose of this project will be to expand the UPDIG standards with the goal
of determining and developing refined production workflows, archiving methods, and best practice guidelines for digital photography based on image usage and capture methods.

Included will be an examination of the following

• Current methods of archiving digital photographs
• The compatibility of various RAW and digital photographic software and their ability to read, write, and preserve digital photographs and their associated metadata.
• The advantages and disadvantages of various consumer and professional digital asset management applications.
• The advantages and disadvantages of different professional digital camera systems including capture formats, raw file processors and storage methods for digital photographic assets.
• The capacity of these workflows to work within studio and location photography environments.

These revised and expanded UPDIG guidelines will be published as a website open to the public. The adoption of the guidelines will be promoted to the public through programming at industry trade shows and a nationwide series of training events at ASMP chapters, trade shows, and educational institutions.

This is the language that has been delivered to members of the ASMP Board, and, I am told, begrudgingly to ASMP’s fellow UPDIG members. It seems to me that the UPDIG group should be getting this grant revenue? But how much?

Apparently, reports to the ASMP board of these discrepancies, as well as the monies involved, has redacted the amounts. Yet, we have received those amounts, which involve mostly ASMP’s “in kind” contribution of time for hours worked.

Their response in their request:

Project budget estimate and relative share of project costs among project participants to include the Library of Congress, if applicable.

Lists the following:

Funding:	from NDIIPP	ASMP & In Kind
UPDIG Research: Software	$20,000
UPDIG Research: Hardware (Up-to-date computer systems, monitors, hard drives, peripherals, etc.)	$20,000
UPDIG Research: Labor 12,000 hours @ $60/hour ($40/hour in kind)	$240,000	$480,000 in kind
Administrative Offices & Time		$20,000 in kind
Travel	$30,000
Final UPDIG Website Design & Hosting	$10,000
Copyright Registration Effort (3 face-to-face meetings with the Copyright Office and industry reps. Approximately $1,100 per person, per meeting)	$12,000
Promotion: Copyright Registration Effort and Registry development (Print ad development, artwork, and space)	$50,000	$50,000
Promotion: UPDIG booth at PhotoPlus 2007 & 2008 (Booth, artwork for booth, promotional items, travel expenses for 2 people for 4 days)	$20,000
Education & Training: 10 day & 10 evening events ($3,500/evening, $4,500/day)	$80,000
TOTAL BUDGET	$482,000	$550,000
Total request for funding from NDIIPP	$482,000

Take special note of the lines about the Orphan Works/Registry:

Copyright Registration Effort (3 face-to-face meetings with the Copyright Office and industry reps. Approximately $1,100 per person, per meeting)	$12,000
Promotion: Copyright Registration Effort and Registry development (Print ad development, artwork, and space)	$50,000	$50,000

What remains to be learned, is why then, since ASMP couldn’t use their $1.3million windfall for the organization directly, why they didn’t use it to benefit all photographers, by, say, properly fighting Orphan Works? It can only be hoped that they will do so next session, unless they remain committed to using it for a registry for all photographers, since the Library of Congress award can’t fund that.

As we lick our wounds during the sunset of this second round of the ongoing Orphan Works battle, we must look carefully at our allies and those who may have ulterior motives. I am having a really hard time figuring out which side of that equation ASMP falls on, given it’s track record on this issue in recent months. Moving forward, transparency of their actions and plans will go a long way towards clearing the air with those leery of ASMP's plans and efforts on the three points I've highlighted.

---

ASMP Responds:

ASMP appreciates the opportunity to respond.
The basic points are listed below. More detailed information can be found at www.asmp.org/thefacts This link will be active by 10am Monday, September 15th.

Regarding an image registry - ASMP has no intention of building an image registry. The idea to develop an UPDIG Workflow that would feed into a searchable image registry was part of the original proposal made in late 2006 as an effort to promote copyright registration and facilitate Orphan Works identification. The Library of Congress chose not to fund this effort and it was removed from the accepted proposal in March of 2007. Orphan Works legislation was introduced on May 10, 2008. ASMP has consistently referred proposals of a registry to the PLUS Coalition (www.useplus.org)

Regarding Orphan Works – ASMP is an opponent of the Senate Orphan Works Bill and considers the current House version supportable because of its additional protections afforded photographers. Any changes in the current version will dictate a reappraisal of our position. Go to www.asmp.org/orphanworks for more information.

Regarding the Authors Coalition – The use of this escrowed distribution is legally restricted to advocacy and education for the benefit of the wider industry. The ASMP board of directors is currently examining potential uses. Your input and suggestions are welcomed at suggestions@asmp.org. To read the press release go to www.asmp.org/news/press.

Regarding UPDIG – The final award submission and press release are on the ASMP Web site at www.asmp.org/pdi. There is no reference to an image registry in the ASMP/PDI proposal accepted by the Library of Congress.

---

Your turn. What do you think about the transparency issue? Did ASMP address or resolve the concerns outlined in the initial piece? Please comment below, and review the links that ASMP has provided in their response before formulating an opinion or making a comment.

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.