Orphan Works 2008 - A Wolf In Sheep's Clothing
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 staffmember , has recently registered www.orphanworks.net (check that here) . Obviously, a little lightbulb went off in his head, when he noted when he received the APA letter, where, on March 15, 2006, APA cautions:
“ Within two weeks of the issuance of the Copyright Office Report on Orphan Works, nearly all of the domain names associated with orphan works were registered by commercial interests, in preparation for the profit-taking that will result if the legislation is passed without significant revision. Among them: orphanart.com, artorphanage.com, orphanedphotos.com, findorphanworks.com, and dozens of others.”"...nearly all..." must have been an attractive concept. What was missed, was www.orphanworks.net, which Mr. Keeley, at some point after receiving that letter, registered. One must presume the best, and that it was done following his departure from his official duties, but, well, if nothing else, it appears to me to be bad form, at best.
Further, any online database allowing browsing of images that are potential orphans will quickly become one-stop-shopping for anyone seeking to use images for free. Knowing that these images are already deemed likely to be orphans, users will use these databases like a candy store. Any database at which users are required to list their intent to make use of a potential orphan is entirely useless to rights holders. Small business owners do not have the resources to monitor even one such list on a regular basis, let along monitoring dozens of lists, each with potentially hundreds of thousands of orphan works listings, to which new listings are added daily by the thousands.
Let's take a look at this from a legislative standpoint:
It's not a good sign when a bill is submitted with only 3 co-sponsors, for a total of two from each side of the aisle. Two don't count as substantive supporters, since they are the Chair and the ranking member of the committee. The second Democrat is John Conyers, and the second Republican is Lamar Smith. Want to know more about sponsors and co-sponsors? Click here.
If you really want to dig deep (which we love to do), check out this report from Legislative Studies Quarterly about the predictive outcome of a bill's passage based upon the number of sponsors a bill receives. While written about state legislatures, it's insightful, since little other formal research has been done. Those who have worked on Capitol Hill in a members' office (as I did, for a spell) know that the more the sponsors - especially upon introduction - the higher the likelihood of final passage. In other words, the report validates what staffers (and former staffers) know empirically.
To the suggestion that this is the best bill we can hope for, let's take a peek inside the proverbial locker room before the game. The current lineup of players on the committee suggests that there are others on the committee that are going to be more agressive. This is the suggestion we are lead to believe, and, were this mid-session, I might be inclined to consider this. But it's not. It's the end of a session, and there will be a new session come January. It is expected that Jerold Nadler, a 7th term member of Congress, already on the Judiciary Committee, is in line to head up this sub-commitee next session. Nadler's district includes much of the creatives' communities in New York City, from SoHo, to Chelsea, as well as TriBeCa. You can bet his constituency won't take too well to a bad OW bill.
With this bill now presented, much of the committee's work is done, however, your work has just begun. If momentum builds up, from constituents opposed to this bill, it will never come to a vote. And here's how it works: WHENEVER a constituent writes, it gets chalked up as a YEA or a NAY for the bill. The more NAY's the bill gets, the less likely the member is to vote for it, and don't under estimate the importance of a NAY. Further, if you're a constituent, that weighs even more heavily for the member.
Don't know who your member is? visit here to find your own member just by using your zip code. About four clicks of the mouse, and you are corresponding with the person that your community (or state) elects.
That said, writing to the committee members, suggesting that you will work, as a citizen, vigorously to oppose this legislation, with your own representative, and encourage your colleagues to do the same, will let them know that there are not smooth seas ahead.
The following e-mail links are the most reliable information we can find for the committee. If the "send an e-mail" link doesn't work, click the "website" link, to visit their site directly.
When using these links, feel free to change the subject line, but make sure you include the bill # in it. Also include your contact information in the e-mail. Write something cogent, and be concise. Don't ramble.
If, after reading this, you still want to support it, then by all means, engage yourself in the democratic process, and click the "SUPPORT" link below, if not, click the "OPPOSITION" link below.
Democrats | Republicans | |||||
Hon. Howard Berman | Hon. Howard Coble | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. John Conyers Jr. | Hon. Tom Feeney | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Rick Boucher | Hon. James Sensenbrenner Jr. | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Robert Wexler | Hon. Lamar Smith | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Melvin Watt | Hon. Elton Gallegly | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Sheila Jackson Lee | Hon. Robert Goodlatte | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Stephen Cohen | Hon. Chris Cannon | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Hank Johnson (D) 4th Georgia | Hon. Steve Chabot | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Brad Sherman | Hon. Ric Keller | |||||
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Hon. Anthony Weiner | 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 | Hon. Mike Pence (R) 6th Indiana | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their website | |
Hon. Zoe Lofgren | ||||||
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Hon. Betty Sutton | ||||||
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| Democrats | Republicans | |||||
| Sen. Patrick Leahy Chairman (D) Vermont | Sen. Arlen Specter Ranking Member (R) Pennsylvania | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Edward M. Kennedy (D) Massachusetts | Sen. Orrin Hatch (R) Utah | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Joseph R. Biden (D) Delaware | Sen. Charles Grassley (R) Iowa | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen.Herb Kohl (D) Wisconsin | Sen. Jon Kyl (R) Arizona | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Dianne Feinstein (D) California | Sen. Jeff Sessions (R) StateName | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Russell Feingold (D) Wisconsin | Sen. Lindsey Graham (R) StateName | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Charles E. Schumer (D) New York | John Cornyn (R) Texas | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Richard Durbin (D) Illinois | Sen. Sam Brownback (R) StateName | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Benjamin Cardin (D) Maryland | Sen. Tom Coburn (R) Oklahoma | |||||
| E-Mail your SUPPORT | E-Mail Your OPPOSITION | Their Website | e-mail your SUPPORT | e-mail your OPPOSITION | Their Website | |
| Sen. Sheldon Whitehouse (D) Rhode Island | ||||||
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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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