Your Copyright may be "orphaned" - new ammendment

[tim atherton]

(cross posted because of its potential impact) Not a good sign - for US members especially

From Mike Johnstons Blog:

Emergency for Professional and Creative Photographers

Folks, we have a very serious situation on our hands. Congress is right now rushing into law a bill to legalize the theft of YOUR original photographic work.

It's called the "Orphan Works" amendment to the copyright act. What it basically says is that if anybody comes across your professional or creative photography, any time, anywhere, and then attempts to locate the creator (you) but can't, then they can just take it. Take it and use it however they want to.

You forfeit your right to control your own work. This would be true even of photographs with registered copyright.... more below

Ammendment to copyright law to allow for "orphaned" works

ASMP link

[Donald Brewster]

Seems like a bit of an over-reaction on Mike's part, but nonetheless an important question. That said, I'm not sure what the business rationale is for this amendment. It seems simple enough to me that if you cannot determine the copyright holder, you don't use it, unless in public domain -- and then you go on to find another photo or hire a photographer to make one. Where are the stock agencies on this? Wouldn't they be the ones potentially affected most?

[Kirk Gittings]

I don't see it as an overreaction. I'll give you a scenario that is likely under this legislation. Someone buys one of my lesser known prints on the secondary market, say at an estate sale. They can't read the signature and make a "reasonable" effort to determine copyright ownership and then go ahead and scan the image and use it in a brochure.

More on this on the Stock Photography Info Website;

www.stockphotographer.info/content/view/130/99/

[Roger Richards]

For those interested in this issue a good person to contact is Senator Patrick Leahy of Vermont, as he is also a photographer and has been a friend of the White House News Photographers' Association in the past. I am sure that he was not aware of the possible ramifications toward photographers, and would be resp0nsive to our concerns.

[Donald Brewster]

Kirk:

I understand the scenario you present -- and I'm not arguing against it. God knows you've far more at stake in this than I ever would. What I'm puzzled by is why someone thought this was necessary legislation in the first place. Where is the "real" problem this legislation is allegedly trying to fix? Who is pushing this legislation?

Regards,

Don

[Kirk Gittings]

Donald, Good question. In most circumstances bills like this seem to be written to make life easier for some corporate entity. I don't know who in this circumstance.

[Paul Ewins]

Recently I attended a lecture by Lewis Morley which coincided with an exhibition of British Art of the 60's. Lewis is best known for his photograph of Christine Keeler which he says is the third most ripped off photo in the world (after the standard Mao Tes-Tung portrait and Korda's Che Guevara). He showed a large number of variations some made with permission, most without.

One of those was by Matt Groening and featured Homer Simpson on the chair. This was done without permission because they were "unable to find the copyright holder". They went ahead regardless and it all got settled amicably later.

Imagine being the production company assistant who has to track down the copyright holder. How do you search on the net for an image if you don't know the details? Chances are they weren't even born when the shot was taken, have never heard the story and even if they had a copy in front of them wouldn't have a clue who the subject was.

If they can't find the copyright holder for one of the most famous photos in the world, what protection would your work have? And if someone really wants to use an image how hard do you think they will try to find the copyright holder?

OK, your photo gets used and you get paid "a reasonable amount". But what if it wasn't for something innocuous like the Simpsons. How may products would you like your work associated with? Political advertising? Taken out of context to misrepresent actual events? Loss of control is as much an issue as loss of revenue.

[tim atherton]

Libraries, archives and some educational institutions push for this kind of legislation (sometimes they are the allies of creators in the copyright battle, sometimes the enemies...).

But they generally aren't as powerful a lobby as Disney/Hollywood and the recording industry etc- who are the usual suspects in getting these kind of amendments passed after throwing big bucks at Congress.

[Donald Qualls]

It seems funny to me that the same (corporate) folks who pushed for original copyright to last forever (and settled, grudgingly, for a century or so in most cases) now want the rights to take works without permission if they can't find the copyright holder. Bet me anyone who misappropriates a Disney-owned image will wind up in court, having to prove they made a "reasonable effort" to contact Disney (or find out Disney owns the image -- a much harder issue in some cases), but if Disney uses one of my images, say in a movie that grosses $200 million, I'll get a stock fee once I track them down...

Seems to me both ends of this are wrong -- copyrights ought not to outlive the creator of the work (IMO), but use of a work without permission ought to result in compensation beyond the "reasonable" payment that would have been asked if permission had been propertly sought. As Paul said above -- control is as much the issue as money, in many cases. And we've all learned the lesson Mick Jagger was taught by Bill Gates, right? Always ask *too much*, and then triple it if you don't really want to sell to that buyer -- and multiply by 100 if they have *really* deep pockets (Mick missed that last step, leading to "Start Me Up" gracing Windows ads for a couple years).

[Ed Richards]

> Where is the "real" problem this legislation is allegedly trying to fix?

I can answer that, since it is a problem I deal with frequently. First, photographs are collateral damage. The real issue is books. The fast majority of books published since the copyright date in the 1920s are orphans - under the old tax laws, when a book went out of print, it was advantageous for the publisher to give the rights back to the author, who is now long gone, and who probably does not have a literary executor. If I want to republish that book to get it back into circulation or put it on the WWW for scholars, there is no one to ask. It took me two years to get permission to reprint a 1948 public health law book, and the foundation that held the copyright was still in business.

For photos, say I see an illustration in one of these orphan books - not identified, of course. I would need an independent permission to reprint that. The international reference on smallpox is now on the WWW because it is out of print on paper, but most of the illustrations cannot be published because there is no one to ask permission.