There are a number of common misconceptions about the 2008 Orphan Works legislation that is now before Congress and about ASMP’s position on that legislation. We’d like to address a few of them here.
ASMP is supporting the House of Representatives’ version of the Orphan Works bill in its state as of 5/12/2008. We are not jumping up and down with joy over it, but we believe it is the best approach to Orphan Works legislation that we are likely to see. We feel that the Senate version still needs improvements and we cannot support it in its current form. If the language in either version changes, then our position may change as well. We are familiar with how the language in legislation can be modified as it moves through the process of becoming law. If the language in either version changes, then our positions may change as well. ASMP will continue to work to effect positive changes that we can support. We will not support any bill unless it includes at least the current hurdles that are currently reflected in the House version. For our full analysis, see our article on Orphan Works.
Absolutely! However, through discussions with legislators and Congressional staff, we are certain that an Orphan Works bill will pass — if not this year, then soon. Just saying no is not a realistic option.
Do I need to register my copyright with the U.S. Copyright Office to keep my work from becoming an Orphan?
No. It’s always a good idea to register your copyright, but registration has nothing to do with your work becoming or not becoming an orphan. Copyright registration is important because it allows you to get the full benefit of the law if your work is infringed. See the ASMP copyright tutorial for more information.
Do I need to register my work in one of the image registries to protect my images from being claimed as orphan?
No. The registries are one way of being found, and if the owner of an image can be found, the work is not an orphan. There are other ways to be found, such as metadata within image files and credit lines in publications. The main thing is to make it easy for buyers to find you.
So you should be embedding metadata and communicating with clients to keep that data from being stripped. We are working with software and hardware makers to secure metadata as best we can. Please see the the ASMP business forms for recommended paperwork that includes contract language about stripping metadata. Please see the UPDIG website for technical recommendations on embedding metadata.
There is tremendous pressure on Congress to adopt an Orphan Works bill. ASMP and other organizations have worked with the current Congress to improve the language of the bills. The House has been very receptive to our industry issues and the House version has included language that protects us in ways that previous versions (and, as of 5/12/2008, the Senate version) do not. We are working with the Senate to try to make changes that will also benefit and help protect artist’s works from being considered Orphans and help protect artists’ rights, if they are infringed.
Writing a letter telling the Congress to reject any bill is a mistake at this point. No matter what we do, Orphan Works legislation will eventually pass. If we manage to stop the current House bill, future legislation will inevitably be worse for us.
We are working with the House and Senate to adopt language that is friendly to our industry. This Congress has addressed the concerns and issues we’ve raised to a greater degree than we believe we’ll ever see again. If legislators see that artists will reject every bill put forth, there is no incentive for them to work to accommodate our issues.
We may need your help soon. We will let you know when a letter is appropriate and what it should communicate.
Orphan Works won’t go away. There will be a bill sooner or later that will be passed. In this Congress, we have been able to reach legislators with our needs and issues in a way that we don’t feel we will be able to repeat in any future Congress. We have been working with the current Congress to affect the language of these bills in ways that may never be achieved again.
If we fail to support the House version, what’s the House’s incentive to fight for modifications of the Senate bill, if both bills pass and end up in conference committee?
Definitely not, but we were able to get enough protections in the House version of the bill that we felt that supporting it is appropriate. We are currently working with the Senate to secure more friendly language and with the House to protect the gains we have already achieved. We have asked for many considerations and changes in the past two years. There have been many issues on which the legislators would not bend. However, the House bill reflects what we consider to be just about the best Orphan Works language we will ever see. You can tell that by reading the complaints about the bill on publisher, university, museum and library websites.
You should do all the things ASMP already recommends. These steps are simply good business and in a digital age, they are critical.
- Register your work with the Copyright Office.
- Embed metadata with your contact info as creator.
- Embed metadata with the licensing terms when delivering work to a client
- Embed metadata with restrictions for use when putting work on your own site.
- Try to get your clients to include your photo credit on all print uses.
Those who favor this law include libraries, museums, publishers, the Copyleft movement, individuals, documentarians, writers — almost everyone other than artists. They’re positioning their demands based on the idea of the “Public Good.” Our government tends to be more responsive to large entities crying out for Public Good than small commercial enterprises crying that they’ll lose money. Society sees a need for being able to use images whose authors cannot be found.
It all started with a huge collection of family photos from Holocaust victims that is stored in the basement of the Holocaust Memorial Museum. The Museum would like to use the photos for exhibits, but is afraid to because of the possibility they would be hammered with statutory damages and attorney’s fees.
Professional Photographers of America (PPA), the Picture Archive Council of America (PACA), and the North American Nature Photography Association (NANPA) are supporting the House bill. The Graphic Artists Guild (GAG), while standing neutral on the bill, is asking its members to refrain from writing protest letters at this time.
At this point, only Illustrators’ Partnership of America (IPA), National Press Photographers Association (NPPA) and Advertising Photographers of America (APA) are putting out the call to action for members to write letters.
The direction of ASMP is in the majority, not the minority as many have implied. And, if you factor in the number of artists the groups supporting our position represent, we are in an even larger majority.
There have been many suggestions for language that ought to be added to the proposed legislation. Could we have gotten more than we did?
Just about every idea that has been suggested recently in blogs, forums and listservs was proposed during the process of drafting the bills, and most of them were turned down flat. Here are some of the proposals that Congress rejected:
- Carve out all visual works from the scope of the Orphan Works legislation.
- Use the Canadian system.
- Have users of orphan works pay a small licensing fee that gets collected by the Copyright Office and distributed to claimants.
- No “safe harbor” provisions.
- Leave the copyright law as is and let users who are worried about liability buy liability insurance, like every other business.
- Carve out commercial uses.
- Grant orphan works treatment only to individuals for non-revenue-producing uses and to non-profits for non-fiction uses.
- Make the Copyright Office digitize its archive of deposit copies and put them online so users could search them using image recognition search technology.
- Make the Copyright Office house the registries.
- Leave statutory damages and attorneys’ fees in.
There are plenty of folks in America who think that the provisions of the House bill are far too generous to photographers and far too burdensome for users, and who are fighting to trim those provisions back. We will have to work hard to keep what little we now have.