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ASMP Continues Year-Long Dialog with Copyright Office on Orphan Works

Proposed legislation could deprive photographers of compensation for use of orphan works. We are working to change it.

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This article was published in 2006. The 2008 legislation is very different.

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At the end of January, the Register of Copyrights issued her long-awaited report to Congress on Orphan Works. The extensive report is available in PDF form on the Copyright Office’s website. “Orphan works” are works that appear to be protected by copyright but whose copyright owner cannot be located. The report was issued in response to a request from Congress to study the issue and propose a solution.

ASMP has been involved in the process from its beginning, filing comments and recommendations, actively participating in the roundtable discussions held in Washington, and meeting with Copyright Office staff over the course of the past year or so.

ASMP is very disturbed by the recommendations made by the Copyright Office for changes to the Copyright Act to deal with orphan works. (The proposed statutory language can be found on Page 127 of the report.) In ASMP’s view, the new language would, as a practical matter, deprive many photographers and other individual copyright owners of the ability to be compensated for the uses of orphan works.

The proposal. To give you a brief, general idea of the Copyright Office’s proposal, when someone wants to use a copyrighted work and, after a reasonably diligent, good faith search, is unable to locate the copyright owner, that person may proceed to use the work without permission. The only requirements would be that the user would have to provide attribution to the author and copyright owner to the extent possible and, if the copyright owner later surfaces, pay only a reasonable licensing fee for basically commercial uses. In some cases, even a reasonable licensing fee would not be available for past uses. There would be no ability to get statutory damages, profits or attorneys’ fees.

Given the high costs of litigation and the low ceiling on recoveries under the proposal (a reasonable licensing fee), ASMP believes that the proposal would effectively deprive many individual creators and copyright owners of any compensation for the use of their works if the individuals cannot be readily identified and located. Photographers simply could not afford to sue. If you consider the fact that most advertising and other kinds of commercial photographs are published without the photographer’s copyright notice or other attribution, particularly on the Internet, this proposal could be a disaster waiting to happen for photographers.

What we are doing. ASMP is working on legislative advocacy to address and try to correct this proposal long before it becomes a bill. We have had preliminary discussions to coordinate our efforts with Professional Photographers of America, the Graphic Artists Guild, the National Press Photographers Association and others. We will keep you informed of progress as may be appropriate, and we will let you know when and if we need your help on the Hill.

At a meeting of the Copyright Society of the U.S.A in New York City last week, ASMP General Counsel Vic Perlman publicly stated that, “As a practical matter, the Copyright Office proposal sacrifices the copyrights of individual creators on the altar of Orphan Works.” We will do everything that we can to make sure that sacrifice never takes place.