UPDATED: Orphan Works and Licensing Exclusivity

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

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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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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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New Flash Technology

So, you're stuck with just one way to point your flash head, and a single bounce-card to make your light look better, and you haven't taken the baseline advice of David Hobby over at Strobist to take your flash off-axis with an off-camera flash cord?

Enter a cool new device to make you look better. Check out the video for the latest Presslite flash modifier: Makes you want to order one right now, doesn't it! At the introductory price of $34.95, you're going to have a nice new tool in your satchel.

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via Gizmodo

(Comments, if any, after the Jump)

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Copyright Transfer Termination

"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, "You 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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Self-Interest vs. Mercy - Pick One

I find I get a great deal out of my reading. I can't imagine the person who just doesn't enjoy reading. Learning from the wisdom of others holds an infinite amount of genius - at your fingertips.

Today, I was reading an article which referenced a book - The 48 Laws of Power. Law 13 notes that in order to get what you want, you have to appeal to people's self-interest, not their mercy.

Really?

(Continued after the Jump)

Yes, Really. Those most pre-disposed to responding to a merciful call either wear a habit, a Roman collar, or are otherwise faith-based.

When was the last time you heard a colleague say they got the assignment because they threw themselves on the mercy of the client - "oh please, hire me. I need to make rent this month!" Nope. Doesn't work that way.

Instead, you have to appeal to their self-interest. Will the work you produce bring to life the vision that the client sold to their client, and make your client look good? Will the imagery you produce sell more product, and bolster the company's bottom line? Will the work you deliver make a subject more attractive, or is it a magazine cover that causes an increase in newstand/single-copy sales?

If you're saying "oh, I'm a documentary photographer working for XYZ humanitarian causes, it's not about that." Really? Yes, it is. It's about the self-interest of the organization in utilizing your images to promote their cause to the world, or validate the efforts of those financing the trips/outreach - so that they continue to give.

If you're saying "I work crappy assignments so I can save up and take trips that are meaningful to me, and hopefully, through my work, make a difference when I can shed light on the plight of the {fill in the blank} people." If that sentence applies to you, and you felt a kinship with it. Read it again, focusing on the phrases "meaningful to me; though my work; I can shed;." That's all about you feeling better about yourself, with the resulting benefit being your work sheds that light.

The sooner you can focus your outreach to clients on what your work can do for them to make them: look better; sell more magazines; further the cause; or improve profits, the sooner you will win those assignments.

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Assignment vs. Stock - Is Stock Risky?

Photographer Thomas Barwick produces a great deal of images. Getty Images has 3,479 images available online via their Digital Vision brand, and other brands - including Photographer's Choice, where he may well have paid to put the images up. Mr Barwick's work here stands as evidence of the value of actual assignment photography, rather than stock. Doing a "search within" for the phrase reveals 193 images include a laptop. Having a look at those images reveals that he probably lined up the whole class - boys, girls, brunette, african american, glasses, no glasses, and with teachers, among them.

Unfortunately, for two PC part manufacturers, and I stress "PC", they both were fishing from the wrong ocean of images. First, they were images of a Macbook, second, well, you take a look....

(Continued after the Jump)

They tried - probably attempted to secure exclusivity to the image they wanted, because the actual images they each used appear to be off the website, just this one. This is the only image on the Getty site. Note the position of the youth in the background. This is the link to the images on the Getty site, and the image is available on a CD, likely with others from the same shoot of the boy.

Next up, is one of the variations from that same shoot. ASUS used a different image and cropped out the ports, because they obviously were not PC ports, they're Macbook ports. Here's the ASUS official product page.

Then there's the MSI computer. Note that they've modified the ports on the side of the Macbook, and added in the MSI logo. Here's the MSI official laptop section, here.

ASMP has a great recouce that goes further in-depth on this subject - check out their website here -Rights Managed Stock vs Royalty Free Stock. I wrote about this previously, back in November - (Black Friday? Try, "You Get What You Pay For" Friday!, 11/23/07).


The evidence mounts - assignment photography, commissioned for the client, and precluded by others in the same field, or altogether, is worth a great deal. If nothing else, it's worth it to avoid the embarassment.

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Via: Zeke K & Jeff Kowalsky/Engadget/ eepc.de

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The 2008 AP Contract Analysis - Introduction

Most assuredly, the AP has a new contract. We first reported about it here (A New AP Contract Emerging? - 5/14/08), and more than one copy came our way from several readers. Of note in their paperwork, was the disparity between pay from bureau to bureau.

You have until June 1, or about 2 weeks, to indicate your intent to object to this or sign it. If you don't sign by June 1, you won't be getting any more AP assignments.

(Continued after the Jump)

Interestingly, the AP notes in their cover letter "We urge you to read the agreement closely and to seek expert guidance before signing if you desire." Yes, be sure to talk to a lawyer, and your insurance agent (regarding indemnification, if for nothing else), before signing.

I've consolidated sections 7, 8 and 9, because they have some fairly standard language in them, and my comments/suggestions in those sections are somewhat limited.

In the end, there clearly was an attempt at doing more for the photographers. Perhaps it was because the AP was competing with Reuters for freelancers, who already pays royalties. Perhaps it was because there was ambiguous, or aged language in the last contract that needed updating. Perhaps it was because they just couldn't get consistent image quality from their freelancers (setting aside competition from Reuters) with the previous low rates. Perhaps it was the AP making an effort to be more thoughtful about the realities of being a photographer. Likely, it was a combination of all of the above.

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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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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