What Are the Odds? The Orphan Works Likelihood of Passage

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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Related Posts:

• Orphan Works - A Unique Set of "Myths" and "Facts", (6/2/08)
• Orphan Works and Licensing Exclusivity, (5/23/08)
• What Are the Odds? The Orphan Works Likelihood of Passage, (5/16/08)
• Apathy Gets You NoWhere, (5/15/08)
• Orphan Works - Senate Markup (5/9/08)
• Orphan Works - HIstory in the Making, (5/7/08)
• Speedlinks - Orphan Works Edition, (5/6/08)
• Orphan Works 2008 - A Wolf In Sheep's Clothing, (5/1/08)
• Orphan Works Act = Thieves Charter? (4/29/08)

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Apathy Gets You Nowhere

ap·a·thy {ap-uh-thee} –noun

• lack of interest in or concern

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Yesterday, I was on Capitol Hill. I wasn't there to discuss Orphan Works, but it sure came up. I was at a breakfast with a Senator, and in there were 22 members of the American Library Association on hand. Here's what their website shows they were coming to DC for:

National Library Legislative Day 2008

On May 13 & 14, 2008, hundreds of librarians and library supporters of all kinds are coming to Washington, DC, for an event like no other: National Library Legislative Day (NLLD). And you can come, too!

NLLD is a two-day event in which people who care about libraries participate in advocacy and issue training sessions, interact with Capitol Hill insiders, and visit Congressional member offices to ask Congress to pass legislation that supports libraries.

National Library Legislative Day is sponsored by the American Library Association, Chief Officers of State Library Agencies, the District of Columbia Library Association, and the Special Libraries Association.

On their webpage, they list links for their talking points on Copyright, which you can read and download here. Topping their list of issues is....you guessed it, Orphan Works. Here's their Congressional Visit packet.

As a member of the leadership of the ALA talked to the Senator, her 21 other constituents listened - intently, and nodded their heads at all the right times. So did the 100 or so other constituents from across the state, listen in - democracy in action, they probably thought. This was the first and thus only issue that was addressed (as it was discussed for some time), and the Senator's legislative counsel came to talk further once the Senator left. Talking points were delivered by the ALA, and the message from the libraries was clear - strike the "dark archive" clause of the House version (among other things). They were organized, they had their message ready.

(Complete post, after the Jump)

Where were the photographers? Nowhere to be found. Not that they were expected, they've never come before. There's been no organized effort to get creatives to swarm the hill, and do what's called a "Hill-climb" (so named, because people are typically walking up the slope to the Capitol from below the building). That's not to say the idea hasn't been floated. I know that others have tried to organize these, yes, including PPA and ASMP. But, apathy abounds amongst photographers when it comes to visiting DC for this purpose.

It seems that photographers can't see the strategic benefits of making this outreach. All photographers see is the $1k in expense to come to DC, and the lost day of work back home, and don't recognize that every other professional business has this type of effort underway to ensure that the legislation that has an impact on their livelihoods they have a voice in shaping.

This is necessary to be done annually, if not more frequently, so that when issues come up down the line, you have an open dialog. Executive staff at all the organizations can only do so much. It's the constituents - the actual voters - that need to come to DC and make their positions known to their elected officials. Yes, cards, letters, and e-mails can help, but whether it's:

• Orphan Works (Senate version S.2913, House version H.R. 5889)
• The PRO IP Act of 2007 (H.R. 4279)
• Tax deductibility of healthcare for small business (House version H.R. 2132, and Senate version S. 99)
• The Artists Deduction Bill - The tax deductibility of artists works at full value rather than materials only (Senate version S. 548, House version H.R. 1524

Thus, know this, there will be many many more issues that affect you down the line.

Get engaged. Make a difference. And yes, co-ordinate with your organizations. There will be many fights ahead. You can either join in the fight for your own best interests, or suffer the consequences of ignoring the issues while the other side of the debate gets what they're pushing for.

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Related Posts:

• Orphan Works - A Unique Set of "Myths" and "Facts", (6/2/08)
• Orphan Works and Licensing Exclusivity, (5/23/08)
• What Are the Odds? The Orphan Works Likelihood of Passage, (5/16/08)
• Apathy Gets You NoWhere, (5/15/08)
• Orphan Works - Senate Markup (5/9/08)
• Orphan Works - HIstory in the Making, (5/7/08)
• Speedlinks - Orphan Works Edition, (5/6/08)
• Orphan Works 2008 - A Wolf In Sheep's Clothing, (5/1/08)
• Orphan Works Act = Thieves Charter? (4/29/08)

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A New AP Contract Emerging?

There's discussion about a new Associated Press contract floating around (UPDATED: We critique it here - The 2008 AP Contract Analysis - Introduction, 5/19/08), and we'd like to set our eyes (or sights) on it. There's rumors of a long overdue royalty for re-sales, but it's still a work-made-for-hire for the entire assignment, apparently, not just on the selected image(s). These are, just rumors, until someone sends it to us. (hint hint). Then, we'll take to reviewing it's terms, and let you know if we think it's a good better deal than the current one.

Which begs the question - this can't be that they're giving photographers a resale percentage out of the goodness of their heart, could it? Or, perhaps it's because they're not getting the level of consistent talent from their stringers? We'll wait to answer those, and other questions, and hopefully get a chance to talk to those at the AP who've put this one together, to understand their thinking behind it.

(Comments, if any, after the Jump)

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A Closer look: PPA's Orphan Works Stance

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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Good, Fast, and Cheap - Pick Two

I was doing my weekend read of the tree-killing newsprint that arrived soggy on my doorstep today, and ran across a quote that spurred this piece. It's from Wal-Mart's chief operating officer, when asked about it's competitors offering free generic drugs, he responded:

"Free is a price that is not a long-term sustainable position."

Enter a few interesting insights that came this way from the Flickr forums, and Craigslist:

(Continued after the Jump)

Over in the Flickr Forum (where I visit far too infrequently!), is a post - Email I got ... business related....help!, which includes, in part:

We have a cool opportunity for a photographer who wants to make some great marketing contacts....This is our First Annual Golf Classic fund raiser, so we need someone who’s going to do an exceptional job, yet can give us very competitive pricing (since money for luxuries like photographers is sparing)... [we] would like to own the photos after the event......We would also like to be able to provide high quality photos...to the guests throughout the day...To let you know what you’re quoting: I have received many, many responses, some of which are offering to do it for FREE just for the contacts; yet, we are willing to pay something, looking for a premium photographer, so please at least make your quotes competitive."

Zing! They're asking for all three -good - "need someone who’s going to do an exceptional job", cheap - "many responses, some of which are offering to do it for FREE", and fast "provide high quality photos...to the guests throughout the day".

Next up is this zinger from bottom-dwelling Craigslist - "6/24: CELEBRITIES IN BOSTON - WE NEED A PHOTOGRAPHER - HIGH PAY! (BOSTON)":

The photos to be taken are unexpected by the person/persons that you are taking the photos of. The person/persons have a celebrity status and the photos taken will be used in a magazine (both print and online). There may be high traffic with other photographers present on this day and time so we ask the following of you if you are interested in this assignment:..You must be experienced...You must have your own equipment/supplies and staff...This is great experience for you as a photographer. You will have the right to use these photos for your own personal use including your portfolio, but you will not be able to sell or transfer the photos to any other source...We are willing to pay no less than $100.00 per photo and up to $150.00 per photo...The photos must each be unique in settings, backgrounds, and pose...All photos will remain your property until we select the photos we would like to puchase...Once the photos are taken you can upload them to a common public server / hosting website, we would prefer you to upload them to photobucket.com.

There seems to be no end to these "opportunities", and no end to suckers lining up to take them.

There's something called the "Project Triangle", and it helps people think through their end-goals. Also of interest is the notion of "project scope", where the area of the triangle inside it is considered the "scope", i.e. "I can do one portrait for the good-fast-cheap" you're looking for, but if you want 10, well, the scope is too big for the same figures to apply. Author James Lewis calls this the PCTS relationship, for "Performance, Cost, Time, Scope." So, perhaps for the fees and turnaround needed, to produce one quality portrait I can do it. But if you want four portraits, the fee and time needed will have to change relative to the scope you've expanded this project to.

It can be light-hearted from time to time, when encountering a prospective client who cites price, to say to this person "I can give the images to you good, fast, or cheap - pick two." Heck, you'll likely not do the assignment anyways, but you can enjoy the conversation none-the-less. And maybe, if you send your estimates for "good and fast", they might just go with you.

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