APA Calls for Changes . . .
Stock Asylum Staff Report
March 27, 2006
Advertising Photographers of America (APA) has sent a 22-page position
paper to the subcommittee that is considering proposed orphan works
legislation in the U.S. House of Representatives.
While asserting that, "We do not oppose an orphan works amendment," the organization of commercial photographers recommended no less than 11 important changes in the orphan works proposal and existing copyright law.
"If this amendment is enacted into law without significant revisions, it has the very real potential to destroy the businesses and livelihoods of thousands of artists, cost thousands of jobs, and result in a massive wave of litigation related to the use of orphan works," The APA said in a letter accompanying the paper. "In it current form, this amendment is a disaster in the making."
The letter is signed by Jeff Sedlik, APA's chief advisor on licensing & copyright, George Fulton, national president of the organization and Constance Evans, executive director of APA. Sedlik also signed the position paper. Sedlik is a past APA president, and president and CEO of the PLUS Coalition, which is trying to standardize image licensing transactions. Both letter and paper were presented to the Subcommittee on Courts, the Internet, and Intellectual Property last week.
Under the orphan works proposal submitted to Congress by the U. S. Copyright Office in January, copyrighted works could be published or otherwise used without the permission of the copyright owner if the copyright owner is unknown or cannot be found. The proposal would severely limit the rights of copyright owners who surface later.
Visual artists are particularly concerned because illustrations, photographs and other two-dimensional artwork is often published without attribution, making it difficult to locate the copyright owner and easy to declare such works "orphans."
The American Society of Media Photographers, the Picture Archive Council of America and the Professional Photographers of America, all trade organizations whose members license imagery, are participating in closed-door talks about orphan works on Capitol Hill. The talks also involve staff from the House of Representatives and organizations that want the proposal passed with few changes.
"Over the protests of artists, the Copyright Office has ignored the fact that photography and illustration are particularly vulnerable to the loss of attribution information and that after the work leaves the artist's hands, the retention of authorship information is entirely out of the artist's hands," asserted APA in its paper.
Because of this, APA suggested three changes -- first, that Congress impose "severe penalties and enhanced remedies on those who willfully remove attribution from a photograph;" second, that Congress amend current law to require that all users of works provide attribution "wherever works are copied, published, distributed, displayed or transformed or performed;" and, third, that anonymous works be considered a separate class of orphan works with more restrictions placed on usage and greater legal deterrents against abuse.
In another matter, APA asked that non-profit organizations like libraries, museums and educational institutions be limited when using orphan works to generate operating funds rather than to further scholarship and disseminate information. Museums, for example, often generate income by publishing books on popular topics.
In the same vein, APA urged Congress to define exactly what constitutes a commercial use of an orphan work and to limit all such uses where the use might "affect the market for or value of the work."
The organization was also concerned about commercial uses of images depicting people. Noting that, "Parties making use of orphan works will serially violate the rights of publicity and privacy of pictured persons,"
APA asked that the proposal be amended, "so as to expressly limit the use of any orphan work bearing the likeness of a person or persons to personal, non-commercial use only and to exclude the right to distribute, perform or create derivatives of such works unless express written permission is obtained from the pictured subjects in advance."
APA also was clearly concerned that the Copyright Office proposal will give rise to orphan works businesses whose sole product will be the supply of hard-to-trace artistic materials.
"Without changes in the proposed amendment, we will soon see orphan works aggregators enter the marketplace, specializing in offering ultra-fast search and clearance services for orphan works," APA said.
"Therefore, we suggest very stringent language prohibiting the aggravation or offering (whether direct or indirect) of orphan works . . . ," said the APA paper. "We propose that congress provide enhanced remedies in the event of such use, including actual damages, disgorged profits, statutory damages, attorney's fees and injunctive relief, notwithstanding the copyright registration status of the work, thereby establishing a reasonable deterrent and providing artists with appropriate remedies in the event of abuse."
To make it more likely that copyright owners are found, APA suggested Congress require that users of orphan works search for the owners every six months throughout the usage period. Failure to comply with this provision should result in enhanced remedies if the infringement is discovered, APA contended. "Such enhanced remedies should include statutory damages, actual damages, profits and injunctive relief, regardless of the copyright registration status of the work," APA said.
The organization also asked that Congress appropriate funds for registries of authors and other copyright owners to help image users find copyright owners, but noted that such registries will not help users find anonymous authors.
Finally, the organization recommended that Congress limit the use of orphan works in derivative works to non-commercial applications. Under the orphan works proposal submitted by the Copyright Office, copyright owners could not stop an infringer from continuing to use an orphan work once the infringer has, "prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression . . . ," and has paid "reasonable compensation" to the copyright owner."
"We believe that the exemption from injunctive relief, while well intended, will be widely abused and will allow any user to avoid the prospect of injunctive relief by simply transforming the work sufficiently to meet the minimum derivative threshold,"APA asserted.
"Artists and their businesses hang by a thread and that thread is copyright law," concluded the APA paper. "On behalf of thousands of artists across the nation, we implore you to leave the scissors on the table and urge you to work with all parties towards the creation of an equitable orphan works amendment that provides access to certain works for certain use while respecting the rights of artists and other copyright holders. Let's not kill the parents to save the orphans!"
The APA web site is at: http://www.apanational.com
For a PDF of the APA paper, click here
For the Stock Asylum's Orphan Works Section, click here
