Urgent Action needed on Copyright Law

I urge photographers, illustrators and other graphic artists to read this information and act upon it, writing your legislators to encourage them not to support the Orphan Works legislation currently under consideration. Read on for more detailed information and links to contact your senators, congressmen and representatives.

From a letter sent by Leif Skoogfors, Stock Artist Alliance (SAA) Legal Chair and board member. I have added some information (in [ ]) for clarity.

You may have heard reference to the concept of "Orphan Works" which the U.S. Copyright Office has been investigating this past year. [Orphan works are, in this case, photographs and digital photographic files that are missing the creator information (name, address, copyright information, etc.) or the original copyright cannot be located -- see excerpt of letter by Vic Perlman of ASMP below]

This month, the Copyright Office issued its report that contains a proposal for an amendment to the Copyright Act. If passed into law, it would in effect make the enforcement of copyright in the U.S. a joke.

Even worse, the proposal has been "fast tracked" in Washington with a good chance of passage before the end of the current session of Congress. SAA has joined a coalition of industry groups to quickly and defiantly respond. As SAA Legal Chair, I am actively working with the Coalition and SAA is dedicated to assisting in any way we can. As a start, we will be posting information on our public web site and sending out letters to increase awareness across the industry.

ASMP deserves huge credit for taking the lead to form a growing coalition of organizations which ASMP General Counsel Vic Perlman is representing in connection with Orphan Works. In addition to SAA, other members are the Graphic Artists Guild (GAG), the National Press Photographers Association (NPPA), Advertising Photographers of America (APA), Editorial Photographers (EP), the Illustrators Partnership of America (IPA, which carries with it approximately 40 other organizations) and the Picture Archive Council of America (PACA, with their General Counsel Nancy Wolff).


In the UK, the Association of Photographers (AOP) and the British Association of Picture Libraries and Agencies (BAPLA) have joined the coalition. Although their political clout is necessarily indirect in this matter, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the US market, but it could set up pressure for similar laws in other countries.

What can YOU do to help?

1. The most urgent thing that you can do is to understand the severity of this issue. Please carefully read the letter by Vic Perlman, General Counsel and Managing Director of ASMP. It details exactly why, in his words "if that language is enacted in its current form, it will be the worst thing that has happened to independent photographers and other independent visual artists since Work Made for Hire contracts."

Vic's letter is on the ASMP site


2. We urge all U.S. [photographers, illustrators, and graphic artists] to take the time to FAX letters to members of House and Senate Judiciary Committees, and also to your home legislators without delay.

Download the Model Letter and personalize it before you send it off to your legistators.

Download Names and Fax Numbers of the House and Senate Judiciary Committees

Find your Senators

Find Your Representative

You may find it easier to use ASMP's Fax Tools

Letter from Vic Perlman, ASMP General Counsel [excerpt]

The problem

The U.S. Copyright Office issued its report on Orphan Works only a couple of weeks ago. The end of that report contained proposed language for an amendment to the Copyright Act. That proposal is now being fast-tracked in Washington with a good chance of passage before the end of this Session. In my opinion, if that language is enacted in its current form, it will be the worst thing that has happened to independent photographers and other independent visual artists since Work Made for Hire contracts.

Orphan works are basically works whose copyright owners cannot be located. The term "Orphan Works" is really a dangerously misleading phrase. It makes it sound as if it includes only a few works that are not valued enough by their creators to warrant taking care of them. That may be true for owners of many kinds of copyrights. However, the reality is that for independent photographers and illustrators, the majority of your published photographs may well become Orphan Works. The reason for that is that, unlike just about every other category of copyrighted works, photographs and illustrations are typically published without any copyright notice or credit to the photographer or illustrator. The one exception to that has traditionally been editorial uses, but even there the trend seems to be away from providing credit lines. As more and more photographs are published on the Internet, credits become even rarer. Worse, even if you registered your photographs at the Copyright Office, there is no mechanism for identifying you or your photograph or for locating you through those records, if the user does not know your name.

Under the proposed legislation, a person or other entity who wants to use a copyrighted work is required to make only a "good faith, reasonably diligent search" to locate the copyright owner. If, after making such a search, the user is unable to locate the copyright owner, he/she/it gets an almost free license to use the work. If the copyright owner never comes forward, the user gets to use the work for free. Even if the copyright owner discovers the use and demands payment, the MOST the copyright owner can get is "reasonable compensation," i.e. a reasonable license fee for the use actually made. There is NO possibility of statutory damages or attorneys' fees, even if the work was registered before the use was made without your permission.

Wait, it gets worse:

If the copyright owner discovers the use and demands payment, "where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made."

The fact that the potential compensation is so low presents a fatal impediment to collection: if you discover one of your works being used and demand only your reasonable licensing fee, but the person refuses to pay, you cannot afford to sue to collect the minimal amount to which you are entitled. Without the possibility of an award of attorneys' fees or statutory damages, no lawyer would take your case; and if he or she did, you would end up paying far more legal fees than you could possibly collect.

The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn't have a published credit. Yes, people have to contact publishers to try to identify and locate you, but if that doesn't produce your name and/or contact information for any reason, they may be entitled to a free, or almost free, pass.