An Orphan Works Breather . . .

Stock Asylum Staff Report
Dec. 13, 2006


Many image creators breathed a sigh of relief last Saturday when the 109th U.S. Congress adjourned without passing proposed orphan works legislation.

But the legislature's failure to pass the controversial law does not mean the issue has gone away. And organizations like the American Society of Media Photographers (ASMP) and the Picture Archive Council of America (PACA) stand ready to address any new orphan works bill that might be submitted to the 110th Congress, which is scheduled to convene Jan. 4.

"We hear unsubstantiated rumors that some legislators are interested in moving on this fairly quickly (in the new session) despite the fact that there are more pressing issues in front of Congress," said Victor Perlman, general counsel for ASMP.

Perlman said legislators often measure their success by counting the number of bills passed. As such, he said, lawmakers favor legislation where little or no opposition exists. "They like orphan works because the only opposition comes from us little guys," Perlman asserted.

PACA's counsel Nancy Wolff noted that more powerful industries like music and film have expressed little concern about the porposal because their creations almost always bear easily-found copyright notices and, thus, carry little risk of being "orphaned."

Orphan works bills proposed in the last Congress would have made it substantially easier to use copyrighted materials when the copyright owner is unknown or cannot be found.

A number of organizations strongly favor an orphan works law, including some that represent museums, libraries, independent filmmakers and publishers.

Among other arguments, these groups say their members want assurances they will not be sued for publishing materials like historic letters and photos. The organizations believe the public is being deprived of much useful information because the current copyright law exposes their members to considerable liability when publishing these kinds of materials.

However, the first orphan works proposal offered by the U.S. Copyright Office almost a year ago, could have been disastrous for photographers, illustrators and artists, whose works are often reproduced without attribution. Groups like ASMP, PACA and others strongly objected to the Copyright Office proposal, claiming it would have undermined copyright protections and led to widespread infringement.

Legislation twice offered by Rep. Lamar Smith would have answered some concerns of visual artists, but did not go far enough for many professional organizations, especially those whose members produce and license materials for commercial and editorial uses.

Smith, a Texas Republican, was chairman of the Subcommittee on Courts, the Internet, and Intellectual Property during the 109th Congress. The subcommittee of the House of Representatives Committee on the Judiciary is responsible for legislation involving the U.S. Copyright law. It is not known who will take over Smith's position in the new Congress, which is controlled by the Democrats.

Perlman, who played a very visible role in opposing orphan works during the last session, said ASMP will not talk about strategies it is developing during the Congressional break.

He said ASMP does not want to tip off the legislation's proponents about any new tactics the group might employ. However, the ASMP general counsel said the photographers organization "will try to be more proactive and less reactive."

He said opposition to orphan works legislation should be stronger this time because of the recent summit of professional organizations held in New York City this autumn. The 18 attending organizations agreed to work together on issues like orphan works.

"As long as we can all speak with one voice, it takes care of one of the problems that we have," said Perlman.

At the same time, PACA's counsel Nancy Wolff said PACA continues to work closely with Steve Metalitz, a Washington D. C. copyright attorney hired by Getty Images and Corbis to lobby Congress on behalf of the stock photography industry.

"There really is no draft of the legislation in front of Congress right now," said Wolff, noting that Smith's bill was pulled before the end of the last session. "I anticipate it will be back in January."

Wolff added, however, that there is no guarantee about the language of any new bill. It could closely resemble Smith's proposal or it could be considerably different.

"Our plan will be the same as before," Wolff said. "We will try to work with them to improve the bill."

 

ASMP's web site is at: http://www.asmp.org.

PACA's web site is at: http://www.pacaoffice.org.

For more about orphan works, click here.