Wednesday, April 30, 2008

Orphan Works 2008 - A Wolf In Sheep's Clothing

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 (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:,,,, and dozens of others.”
"...nearly all..." must have been an attractive concept. What was missed, was, 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


Hon. Howard Berman
Chairman(D) 28th, California


Hon. Howard Coble
Ranking Member
(R) 6th North Carolina

E-Mail your SUPPORTE-Mail Your OPPOSITIONTheir Website e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. John Conyers Jr.
(D) 14th, Michigan

Hon. Tom Feeney
 (R) 24th Florida

E-Mail your SUPPORT E-Mail Your OPPOSITION Their Website   e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. Rick Boucher
(D) 9th, Virginia

Hon. James Sensenbrenner Jr.
(R) 5th Wisconsin

E-Mail your SUPPORTE-Mail Your OPPOSITIONTheir Website e-mail your SUPPORTe-mail your OPPOSITIONTheir website


Hon. Robert Wexler
(D) 19th Florida


Hon. Lamar Smith
(R) 21st - Texas

E-Mail your SUPPORT E-Mail Your OPPOSITION Their Website   e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. Melvin Watt
(D) 12th North Carolina


Hon. Elton Gallegly
(R) 24th California

E-Mail your SUPPORT E-Mail Your OPPOSITION Their Website   e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. Sheila Jackson Lee
(D) 18th Texas


Hon. Robert Goodlatte
(R) 6th Virginia

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Hon. Stephen Cohen
(D) 18th Texas


Hon. Chris Cannon
(R) 3rd Utah

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Hon. Hank Johnson

(D) 4th Georgia


Hon. Steve Chabot
 (R) 1st Ohio

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Hon. Brad Sherman
(D) 27th California


Hon. Ric Keller
(R) 8th Florida

E-Mail your SUPPORT E-Mail Your OPPOSITION Their Website   e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. Anthony Weiner
(D) 9th New York


Hon. Darrell Issa

(R) 49th California

E-Mail your SUPPORT E-Mail Your OPPOSITION Their Website   e-mail your SUPPORT e-mail your OPPOSITION Their website


Hon. Brad Schiff
 (D) 29th California


Hon. Mike Pence

(R) 6th Indiana

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Hon. Zoe Lofgren
(D) 16th California

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Hon. Betty Sutton
(D) 13th Ohio

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Senate Judiciary Committee

Democrats Republicans
Sen. Patrick Leahy


(D) Vermont
  Sen. Arlen Specter

Ranking Member

(R) Pennsylvania
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Sen. Edward M. Kennedy

(D) Massachusetts
  Sen. Orrin Hatch

(R) Utah
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Sen. Joseph R. Biden

(D) Delaware
  Sen. Charles Grassley

(R) Iowa
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Sen.Herb Kohl

(D) Wisconsin
  Sen. Jon Kyl

(R) Arizona
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Sen. Dianne Feinstein

(D) California
  Sen. Jeff Sessions

(R) StateName
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Sen. Russell Feingold

(D) Wisconsin
  Sen. Lindsey Graham

(R) StateName
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Sen. Charles E. Schumer

(D) New York
  John Cornyn

(R) Texas
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Sen. Richard Durbin

(D) Illinois
  Sen. Sam Brownback

(R) StateName
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Sen. Benjamin Cardin

(D) Maryland
  Sen. Tom Coburn

(R) Oklahoma
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Sen. Sheldon Whitehouse

(D) Rhode Island
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Anonymous said...

Nice piece John.

Some heads in the trade groups need to be knocked together in a pretty serious way.

Lets make some noise people!!!

Anonymous said...

So what would be the most nefarious example of abuse? Would it be like this: I set up an black market resource center to feed images anonymously to a unscrupulous art buyer and they use the images and say that they couldn't find the owner because someone sent them to them without identifying them initially. So if one website after another had images posted without ids anyone could just take an image, send the owner of that website where they were posted for free an e-mail asking for ownership id and just by the supplier replying, I don't know, would suffice as a reasonable search for the original creator? Again, let's hear some real examples of disastrous behavior and abuse scenarios ALONG with the theories of how bad the law is. Great piece John, I've already sent my opposition to my Senator who sits on the committee.

Anonymous said...

Probably one of your best pieces. This bill is akin to the inmates running the asylum. You pretty much outlined the doomsday scenarios I've been imagining. One of the really troubling things about the bills are they are extremely vague as to what a "reasonable search" is.

I'm pretty much convinced there's some group that sees a lot of money to be made by stripping we content creators of our rights and recourse. I don't see how fair use doesn't already apply to the museums' and libraries' need to preserve older works--or if not then a minor adjustment could fix that. Something just really stinks there.

I will be making use of your helpful links to register my opposition to the bills, thanks.

Anonymous said...

FYI - My emails to Sensenbrenner & Kohl bounced. In order to send emails to either of them, you need to use the web form on their respective sites.

John Harrington said...

Derek --

Thanks. That's why I noted that if that happened, to go to the 'website link', and go that route. I appreciated your CC'ing me on what you wrote to them, and you are among over a dozen people, so far this morning, that CC'd me with well written correspondence to the legislators. I can only imagine how many didn't CC me, and just sent along a message.

- John

Anonymous said...

Go get 'em Mr. Zero!

This is great info. I wonder at times like this why I'm a member of ASMP. Are they really operating in our best interest or are they touching their toes.

I'm with you all the way on fighting this.

John Harrington said...

Giulio --

Being a member of ASMP is not just a one-issue deal. There are countless other great things that they do for members - SB2, corporate discounts, payroll offerings, insurance, and so on. Don't throw the baby out with the bath water!

-- John

Anonymous said...


I'm confused. I haven't opposed legislation before but I want to oppose the proposed Orphan Works bills. Do I just send my "nay" comments to the member for my area, or do I register my concerns with all members of both committees even if they don't officially represent me and my area? Is there any advantage in my sending my concerns/comments/nay vote to other members of the committees? What's the most effective way to voice my concerns?

Thanks for a well written, thoughtful article. As a member of both organizations, I was shocked and disappointed by ASMP's and PPA's apparent endorsements of the proposed Orphan Works bill as well. As a member, I felt let my interests weren't being represented on a matter of huge importance. I am just starting out as a professional photographer, however the thought that I will only have limited rights and protections over my own work makes me wonder whether or not I can pursue this profession for the long-term.

Thanks, Brenda

Clem Spalding said...


I think you are misrepresenting the situation and what ASMP is advocating (and why) in a unhelpful, and perhaps dangerous, way. At best, your post is a gross over-simplification of a very long and complex situation.

At the very least, you should have posted a link to the ASMP OW page at the beginning of your post so that readers can see the actual position statements for themselves rather than relying solely on your biased interpretation.

Here it is:

Also, you cast aspersions on the actions and positions of ASMP without ever supplying plausible motivation. Can you explain why?

John, with your position of high-visibility, thanks in-part to ASMP, you have a responsibility to speak with prudence and probity and sober discretion. I expect better from you.

Please consider these words in the spirit in which they are intended.



David said...

I am fairly new at all of this and I have read you book (3 times) John, but I have to wonder why the licensing method is the only way to do business.

It's like wedding photography, in my small town here in Ontario the client gets a DVD of the images they select as well as prints. The photographer does not rely on print sales, but rather just charges more up front (Note, not all do this, but all the photographers I personally know)

Why could this not be extended to the rest of the photographic industry....Why not up the front end pricing and not rely on licensing. If you get paid enough up front, then who cares if the image gets passed around on the net. I don't think that Saturn cares that my care had 2 owners before me.

Sure you can't copy a car and get 10 millions of copies of that car....But if I am being paid enough to create original work to keep the business running and have a good quality of life....I think basing my income on constantly creating in not that bad of a plan.

So why is licensing model better then just getting paid to create? Is it that it's because it's the only way it has been done or is there another reason for retaining copyright?

I have never really read anything that explains this....any links?

Anonymous said...


That page lists what ASMP considers achievements. A lot of people outside the ASMP frankly, strongly and (in John's case) eloquently disagree. You can pat yourselves on the back and say job well done but you are only kidding yourselves.

And for the ASMP to state that this should be supported because it is the best it will ever be just makes you look like you've been mugged.

John has clearly put forward strong arguments in opposition and you can address those respectfully or just posture and accuse him of scaremongering.

Right now the ASMP are not looking fit for purpose.


Anonymous said...

I didn't realize that by being a photographer -- I had become a public servant.

Here is one photographers testimony before Congress

"...If individual independent creators are to be successful in protecting their interests, they must demonstrate their willingness to serve the public interest while they minimize the financial consequences to themselves. Properly addressed with selfishness restrained on the part of the stakeholders Orphan Works legislation can and should find its way into law."

(c) 2007 Richard Weisgrau (former ASMP head honco)

Anonymous said...

ASMP - blah, blah fucking blah.

Weisgrau wrecked ASMP with his self-indulgent paranoia.

Stand up and do the right thing. Forget the trade groups, grow some balls and write a letter to your Congressman that requires you to think instead of copying some pro-forma boilerplate.

Hiding behind Mama ASMP's apron is going to do the trick.

Anonymous said...

First off, I need to make clear. I worked for Corbis for 7 1/2 years which has afforded me a great deal of knowledge regarding copyright law, how stock agencies come to find and license images and the level of paranoia incumbent to commercial and editorial image user’s. However, I do not have a big stake in the Stock agencies’ position on this topic.

Secondly, I no longer work for corbis and have not for a while now. I am a professional stock photographer. I have as much a stake in this whole thing as any one of you would.

Finally, I need to make clear hate the pirating of images has been going on wholesale for a very long time. This is nothing new.

Below are responses I have written in another forum to which I belong with regard to similar articles about “orphan works” legislation. Not addressed in these original responses are the notion of “derivative works” and models suing photographers. With regard to these I say.

Derivative works are far more complex than the author here lets on. Copyright in the derivative work applies only to those parts (changes) which the derivating party has made. Copyright in the changed original work is still held by the creator of the original work. Thus unless a work is altered beyond the recognition of the original, the original copyright is still valid. See below for an excellent definition of derivative works.

Second, the notion of models suing photographers. First, as any photographer selling her/his work knows. The level of paranoia on the part of image users is very high with regard to using images containing people. It is the user’s legal responsibility to be able to provide a model release or actually verify it’s existence and be able to provide it if there is a suit. In a ironic way this actually strengthens art photographer’s claim as not only is there evidence of the copyright holder brought to the legal table in a suit but evidence that the user did not confirm the existence of a model release with the photographer. Simply stated, legitimate clients using “orphan works” which is what opponents to the bill see as the problem WILL NOT use images with people or property which would require a property release without proof of necessary releases.

Ok, everyone needs to stop panicking here. I have read both articles listed within this string. As Kate points out this is not the first mention of some heinous orphan works legislation. In both instances, these articles are written by guys who tend to be pretty radical in their attitudes and not entirely attentive to the true nature of the topic they are discussing. First off, whatever orphan works bill might come around, it DOES NOT mean that artists will lose the rights to their works. The idea of orphan works has long been a part of copyright legislation, the proposed new legislation is meant to better define the actual nature of what orphan works are and how problems have developed in light of the digital age. The idea of orphan works is predicated on the notion that the person or company that would like to use a work of art by a relative unknown must apply due diligence in an attempt to find the artists or his/her heirs or trust. I know several small company owners that use orphan works a lot and for any orphan work they wish to use they hire a researcher and a lawyer and take specific and routine practices to prove due diligence and make a reasonable search for the copyright holder. The notion of orphan works is more about works created in the past than it is about artists in the here and now. Currently, however, in the US, an artist has the option of listing with with ARS or VAGA, both long extant companies that negotiate copyright fees on behalf of an artist. The artist does not have to document every piece they have ever done. You use these organizations to protect your copyright claim. You also use these companies to put your name into the public register, thus lessening orphan works problems. Almost every first and second world country on earth has one or more of these types of national organizations whose purpose is to protect copyright for an artist.

Here is an extensive explanation of the proposed legislation.

The claim that Corbis and Getty (and other stock agencies) are the primary instigators of this legislation or even support it is downright ludicrous. They have absolutely nothing to gain in this. First off, Corbis and Getty work with individual photographers, illustrators, museums and image archives to license their works on their behalf. It is like a gallery selling an artist’s work, they sell it and they get a commission and the artist gets paid the rest. The creator of the work still holds copyright to the work and in the case of museums and image archives the end user would have to pay a separate fee to the copyright holder for the right to use the image (this is where VAGA and ARS come in). Getty, Corbis, and most other stock agencies hold no claim to the copyright inherent in the work. In fact, contributors (individual artists, photographer’s and illustrators) to corbis can have corbis register their works with the US copyright office at Corbis’ expense. The only exception to this is work for hire or spec commercial shoots, etc. In this case the concept of work for hire is the same as it might be when a photographer shoots for a magazine and the contract gives rights to the film and the images to the magazine. This is a very common scenario. Corbis and Getty do have other wholly-owned collections, for instance Corbis’ Bettmann Archive. But again, while Corbis might own the film or original illustrations in the collection, they do not own the copyright to the actual image. This is still the intellectual property of the creator. To speak to the alleged amassing of giant royalty free collections. most stock agencies, Getty and Corbis included have much royalty-free imagery, however! The RF images they have fall under two categories, one, they have a contract with the photographer who still holds copyright to the image itself, and two, images which the agency actually bought from the photographer (work for hire) and for which the agency also holds the copyright. They are buying the image and it’s intellectual rights (copyright). In addition, the big agencies (corbis, getty, Jupiter) have specific departments the sole purpose of which is to police for images they represent that are used in an illegal and unlicensed way.

There are relatively simple fixes to prevent your work from becoming “orphaned.” One, register it with the US copyright office. You do not have to pay a fee for each image, you can register them in bulk for a fixed price. Two, join ARS or VAGA so that your name becomes part of the public record. Three, maintain your own web presence. Have your own site if for no other reason than to put your name into the public record. In other words, make sure your name can be found in a reasonable search by a trained professional in the field.

It s a lot harder to claim a work is an orphan work than these people are letting on and again, for the most part orphan works practices are generally geared toward older works where the artist might be dead or there is no reasonable system of tracking them down. Things are a lot different in the here and now. Google yourself. See my posts in the forum. The concept of Orphan works has existed in law for a very long time. These new bills are designed to better clarify both artist and user rights. The notion of due diligence in a search for a creator is far more stringent than those opposed to the bill let on. Yes, a creator might lose the right to seek certain types of damages, but the rate of compensation is based upon the licensing fee you yourself would charge for the same use of the work if they come to you or else, if they get this image from an archive or stock agency, it would be based upon price book rates for the same usage. THE SETTING OF THIS FEE IS NOT DETERMINED BY THE OFFENDING PARTY IT IS SET IN BY THE COURT. In other words, you would receive the same amount you would earn if the worked was actually sold by you or your sales agent. There are several means by which to protect your work from "orphan" status. Register it with the copyright office (you can bulk register images). Embed your identity into the IPTC of every image you produce digitally. Join ARS or VAGA in the US who will act as copyright agent on your behalf. Build yourself a web site which is solely about your work and for extra protection, register that site with Google and Yahoo (both free). All of these place and more would need to be checked by a potential end user in a due diligence search for a creator.

anne said...

hear hear!

Anonymous said...

Dear John,
Thanks for taking the time to write and post this piece, it has helped me tremendously to make up my own mind.
Giorgio Niro

Anonymous said...

This is the text of the email I am sending to the committee.
"As an Australian creative photographer, the proposed Orphan Works Act of 2008 is an absolute affront to any notion of democratic representation, a very real threat to any livelihood I may garner from my work, my hours, my ideas and my creativity, and a travesty on an international scale. The battle cry of your American Revolution against British rule was, "No taxation without representation". My battle cry for the opposition to this proposed Bill would be, "No legislation without representation".

Under this proposed act any American (individual or corporation) could legally use any of my images, despite them being copyrighted under Australian law, for free and with no acknowledgement of their authorship. This is utterly unethical and immoral. It presupposes a superiority of US law over any other national jurisdiction, which is illegal according to international law. It removes any control over the use of my works. For example, an extremist right-wing organisation that is outlawed in my country could use my image, for free, to promote racial villification or other causes that I could not in any good conscience endorse. Is this an Act the self-proclaimed "land of the free" wants to be known for? Is this an Act that the supposed "champion" of democracy, free trade, liberty and equality for all can be responsible for?

Naturally, I cannot vote in your elections, so you may think my "voice in the wilderness" is safe to ignore, but, as it happens, my wife and son are both American citizens, and so I have family all across the USA, all of whom are registered to, and do vote. I also conduct business with a number of USA based businesses who all value my support and promotion of their products in Australia. They will be hearing from me on this issue, too."

Anonymous said...

you are acting as if everyone will have access to your raw files/negatives.

there is very little you can do with low res files from the internet and what you can do, is already being done by those without scruples and they are getting away with it.
i.e the recent trevor brown vs crystal castles case.

the bill will change nothing that isn't already happening, except help those that it is aimed at, the museums/libraries etc

those without scruples are not waiting for this bill before they start their pillaging...believe me

Anonymous said...

Wow, all that writing - i only you'd just read the bills, instead of someone else's interpretation.

Here's a jint - just searchinga registry isn't good enough to qualify as a due dilligence search - thats int he house bill. That kinda smashes the house of cards that you've based all this on.

Specifically, read page 7 of the house bill. It counters everything you've said, except that wouldn't make for a nice rant, actually keeping to the facts.

Geoff Johnson said...


How does Orphan Works address issues with talent or models in images? All of my talent are paid on usage too. Will this fall into the hands of photographers to require a clause in their releases that they are liable?

Unknown said...

WOW! Didn't any of you artists learn in art school how difficult reverse type is to READ!!???

Good design, like good photography is functional. This website is brutal on the eyes!

Trying to get photographers to cooperate on business practice and pricing has been a lost cause for the 30 years I have made a living in this business. Now that I-Stock has a slew of mostly derivative photos on line for peanuts, the future is clear.

Our profession, if you call it, that has the value of a Pentax 67!
And that- ladies and gentlemen ain't much.

A top client of mine is traveling to India in two weeks. No he doesn't love Curry- He's setting up the lynching of a whole corporate art department in one of our biggest publishing houses...

And when he gets back? I'll bet there is someone in his chair who loves Bollywood!

There's no stopping the erosion of the rights of artists now that computers have made creating art so fool-easy.

Hell, most morons can take a nice photo- especially when one can see the result right away.

It's going to get much better...

For the buyers!

Anonymous said...

it just a joke

Anupam said...

Ed Hardy - Get free shipping at can get varieties of Ed Hardy and NIKE products at at very attractice prices. And all these for no shipping cost at all.

Anonymous said...

Giulio --

Being a member of ASMP is not just a one-issue deal. There are countless other great things that they do for members - SB2, corporate discounts, payroll offerings, insurance, and so on. Don't throw the baby out with the bath water!

-- John

interior design

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