Orphan Works Hearing . . .

Stock Asylum Staff Report
March 8, 2006

The CEO of the Professional Photographers of America told a U. S. House subcommittee that proposed "orphan works" legislation essentially deprives visual artists of legal protections under the copyright law.

"Unfortunately, we believe the Copyright Office proposal on orphan works, while certainly well-intentioned, effectively tosses independent visual artists over the side of the copyright boat," David Trust told the Subcommittee on Courts, the Internet, and Intellectual Property on this date. "It attempts to solve a bad situation by creating another bad situation."

"The fact remains, and the Copyright Office acknowledges in its report, that individual copyright owners often find it impossible to gain any sort of meaningful relief under the current copyright statute," Trust told committee members. "The orphan works proposal makes a bad situation worse by exponentially increasing the risk for individual copyright owners who are forced to pursue an infringer in court."

In written and spoken testimony, Trust argued against several provisions in the proposed legislation and suggested that any new orphan works law should not be effective immediately upon passage by the U.S. Congress. He said groups representing copyright owners and users will need time to develop "reasonable search guidelines."

He also proposed the creation of a "small claims copyright court" that would provide copyright owners with a mechanism for collecting royalties for unauthorized image uses, including infringements under the orphan works proposal, should it become law.

In an addendum to his prepared remarks, Trust offered legislative language for the creation of the court. (To read Trust's prepared remarks and his small claims proposal, click here.)

The hearings, by the subcommittee of the powerful House Committee on the Judiciary, were the first legislative proceedings to focus on proposal offered by the Copyright Office in January of this year. The proposal would make it easier to publish copyrighted works, including stock photography, when the copyright owner is not know or cannot be found. Formal legislation has not been introduced in Congress, but is expected soon.

Indications are that Congress plans to move very quickly on the proposal, perhaps enacting an orphan works law before summer.

The speed with which the proposal is being pushed has alarmed many photography organizations. The groups oppose provisions that would make it more more difficult to sue infringers. The organizations also are worried about vague language concerning the amount of effort an orphan works infringer must put into searching for the copyright holder. This is a particular concern for visual artists whose work is often published without attribution.

Trust was the only representative of copyright owners invited to testify at the subcommittee hearing. Several subcommittee members acknowledged that photographers and visual artists seem to have special concerns about the proposal.

The subcommittee also heard from Jule Sigall, of the Copyright Office, Allan Adler, vice president for legal and government affairs at the Association of American Publishers and Maria A. Pallente-Hyun, associate general counsel at the Guggenheim Museum.

Trust said that, while Professional Photographers of America (PPA) does not oppose "a properly constructed orphan works regime," it seeks a law that "would also recognize the value of an artist's work and provide a mechanism that makes it economically feasible for artists to enforce their rights against infringers who refuse to pay a reasonable royalty."

The PPA executive complained about "lack of guidance" for determining what constitutes a "good faith reasonably diligent search" for the copyright owner, as required by the proposal.

"The Copyright Office's notion of allowing various user and artists' groups to develop their own criteria independent of another provides too much opportunity for confusion and chaos," Trust asserted in his testimony.

He also argued against provisions that severely limit monetary compensation to copyright owners who surface later. The proposal allows no monetary damages where the usage results in no commercial advantage for the infringer and "reasonable compensation" for all other cases. The proposal allows for no statutory damages, costs or attorney's fees, making it financially very difficult for the copyright owner to take an infringer to court if the infringer refuses to negotiate a satisfactory settlement.

"The entire approach to this issue turns the traditional assessment of copyright damages on its head," Trust asserted. "In addition to giving a 'buyer's veto' to an infringer, this approach completely ignores the fact that different artists use radically different business models."

He added that, "limiting compensation to a 'reasonable royalty' creates a system in which it is impossible for independent artists to enforce their rights."

"If the 'reasonable royalty' standard is ultimately adopted, PPA recommends that, in addition to providing some cost-effective mechanism for collecting damages, that the burden of proving damages be shifted so that the only evidence the artist needs to come forward with is the amount the artist, or an artist who is similarly situated, would normally charge for such a use."

Adler,of the Association of American Publishers, said his organization would like legislation to clarify how far orphan works protection extends. For example, he wondered, would a search by a book's author also protect the publisher and printer of the book?

In its Report on Orphan Works, the Copyright Office says that copyright revisions authorized in 1976 have made it almost impossible for publishers to use copyrighted materials where the creator is unknown, even when it is likely that the creator would have no objection to the usage.

The 1976 revisions especially frustrate publishers, museums and non-profit groups who want to use photos, illustrations, letters an other works for educational purposes, but find the financial risks too steep. Museums and non-profits often receive donations of art, photography and letters with little or no information about authorship, the Copyright Office said. It also noted that photo labs often must turn away people who want to copy old family photos when the photographer is unknown.

However, the proposed law would go far beyond creating a remedy for these problems. It also would let advertisers use orphan works without worrying about paying penalties in addition to a "reasonable royalty," if the copyright owner surfaces later.

 

PPA's web site can be found at: http://www.ppa.com

For information about the Subcommittee on Courts, the Internet, and Intellectual Property, click here.

To read the full text of David Trust's testimony, click here.