Orphan Works . . .
By
Ron Rovtar
Stock Asylum Managing Editor
February 21, 2006
A proposal by the United States Copyright Office that would solve some
serious problems for many users of creative works could also cause major
headaches for the authors of those works.
The proposed "orphan works" addition to the Copyright Act, would let print publishers, web site owners, movie makers and even advertisers legally use copyright-protected works when the author is unknown or cannot be found.
But vague language about the amount of effort an infringer must put into searching for a copyright owner and significant limitations on the legal remedies for owners who surface later have caused considerable concern among organizations that represent copyright owners.
And because it is probable that some kind of orphan works legislation will eventually pass Congress, several organizations are moving quickly to make sure they are heard even before legislation is officially introduced.
The American Society of Media Photographers (ASMP) said last week that it will work with the Professional Photographers of America and the Graphic Artists Guild to change the proposed legislation. Meanwhile, Nancy E. Wolff, a copyright attorney from New York, said she is in contact with several organizations and has already scheduled some meetings about the proposal. Wolff represents The Picture Archive Council of America (PACA), an association of stock distributors, the PLUS Coalition, which is trying to standardize image licensing practices, and a number of individual photographers.
"I think that, because everyone (in the government) wants something to happen, this has been really rushed," said Wolff. "We have to work with them to make sure that works are protected."
According to an extensive Copyright Office report entitled Report on Orphan Works, the problem of orphan works can largely be traced back to the 1976 revision of the U. S. copyright laws, which provided copyright protection to all original works of authorship "upon fixation in any tangible medium of expression."
The 1976 revisions extended copyright protections to all works of original authorship, even those not registered with the Copyright Office. As a result, some serious legal problems can arise in some very mundane situations. Photo labs, for example, often must turn away customers who simply want reproductions of old family photos. Technically, old studio photos and even family snapshots enjoy copyright protection, even though the photographer may have died, may not want compensation or may not be locatable.
The revisions also frustrate publishers, museums and non-profit groups who want to use photographs, illustrations, letters and other written materials in books and on web sites. The financial risks of such uses can be considerable, even though many of the authors would gladly provide the work for free. Museums and non-profits often receive donations of art, photography and old letters with little or no information about authorship, the Copyright Office noted in its report.
It was these kinds of situations (and, perhaps, problems with policing infringement in the digital age) that led Orin Hatch (R-Utah), chairman of the U.S. Senate Intellectual Property Subcommittee and Patrick Leahy (D-Vermont), the ranking Democrat on the same subcommittee, to request the Copyright Office report in early 2005. Lamar Smith (R-Texas) chairman of the U.S. House Subcommittee on Courts, the Internet and Intellectual Property, and Howard L. Berman (D-California) the ranking Democrat on the House committee also supported the study.
To gather information, the Copyright office held three days of roundtable discussions in Washington DC and Berkeley CA; met informally with various organizations; and received written comments from the public. Groups like ASMP, PACA the Graphic Artists Guild, Illustrators Partnership, the Authors Guild, the J. Paul Getty Trust, the Recording Artists Guild, the Association of American Publishers, Houghton Mifflin Company, the Library Copyright Alliance, the Copyright Clearance Center, Microsoft, Cornell University and numerous individuals offered views.
The resulting orphan works proposal put forward by the Copyright Office late last month would legalize infringement after the infringer "performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner." The infringer would have to provide attribution to the author, if possible.
Under the proposal, an author that surfaces later can claim no monetary relief when the infringement results in no commercial advantage to the infringer and the "infringer ceases the infringement expeditiously after receiving notice of the claim for infringement . . . . "
Furthermore, even where the infringer gains commercial advantages from using the work, the owner could collect only "reasonable compensation" under the proposal. Courts would not be authorized to award "actual damages, statutory damages, costs or attorney's fees" in such cases.
Finally, "reasonable compensation," and proper attribution, would allow an infringer who "has prepared or commenced preparation of a derivative work" to continue using the copyrighted material. In other words, a publisher using an orphan photograph in a book that is already on press could not be stopped from distributing the book, even if the photographer found the content of the book abhorrent.
While this proposal could cause serious problems and financial loss for creators of all kinds of original works, it could be especially devastating for commercial photographers and illustrators whose work is often published without attribution. Worse yet, intentional infringement -- not uncommon in this digital age -- could easily result in many works being declared "orphans" under this proposed legislation. Illegal infringers rarely provide attribution.
But authors of all types of work have reasons to be concerned about the proposed language for several reasons.
First, the proposal would put additional burdens on the shoulders of copyright owners who will need to make sure they can be easily found through common information sources like internet search engines and name registries kept by trade organizations. Writers, artists and photographers with common names like "Jane Jones" or "Tom Smith" might find themselves doubly penalized because their names get lost among numerous listings of people with the same names.
Second, the proposed legislation would give infringers almost total control over determining "reasonable compensation." The vast majority of usage licenses, especially in the visual arts, sell for less than $1,000. This fact (along with the provision that prohibits courts from awarding damages or attorney's fees) makes litigation a practical impossibility. The costs of legal action would far outweigh the benefits.
Third, language like "good faith, reasonably diligent search" can leave itself open to all kinds of interpretations. The Copyright Office report claims that "Such a standard is needed because of the wide variety of works and uses identified as being potentially subject to the orphan works issues, from an untitled photograph to an old magazine advertisement to an out-of-print novel to an antique postcard to an obsolete computer program. It is not possible at this stage to craft a standard that can be specific to all or even many of these circumstances."
However, it could be argued that "a good faith, reasonably diligent search" could start and end with the potential infringer looking for attribution on, around or within the work that is to be declared orphaned. If no attribution is available, the potential infringer could contend that he/she could go no further.
In fact, the Copyright Office report lists "The amount of identifying information on the work itself . . ." as the first of several factors used in determining "a good faith, reasonably diligent search."
Regardless of problems with the proposed changes, it appears likely that some sort of orphan works legislation will be enacted because many people in government want the change, said Wolff.
This means that even if the original Copyright Office proposal is modified (which seems likely considering the opposition) it will probably be in the best interests of copyright owners and their agents to start being more careful now.
Copyright owners should maintain a high profile by keeping their contact information on registries and publicly-available lists current. Those with common names might want to start using middle names or, at least, middle initials.
For photographers and others who produce digital imagery, nothing should leave the studio without basic contact information in the metadata. (In Photoshop, the metadata panels can be accessed using the "file info" selection under the "File" menu.) Metadata can be removed, but honest users have little reason to do so.
Photographers, illustrators and stock distributors should also insist that designers, advertisers and publishers always include proper attribution with all images. The practice is usually followed by editorial publications, but ads, brochures, sell sheets and many web sites often leave the information out.
Providing attribution is not hard. A quick check through recent issues of several national magazines revealed that many ads already carry a line with the ad's copyright and other legal notices. Adding attribution for the artist should not be a problem. The small print used in these notices does not visually interfere with the content of the ads.
In addition, all artists should register their work with the United States Copyright Office. Visual artists might consider protecting their most important work with invisible digital watermarks from a service like Digimarc, or by including the work in PicScout's digital image database.
PicScout is designed to find infringement on the internet and in magazines, but could also be used in reverse by someone who wants to locate a copyright owner, according to Maya Bar, director of the company's marketing and sales. The company uses sophisticated image recognition technology to match photos and other visual content.
"We might not be able to provide a 100 percent solution since we don't have 100 percent of the files as a reference database," Bar noted, "however, we will be able to provide a 'best effort' method for people who would like to clear the image they are about to use."
She said PicScout could add Library of Congress images and other image collections to the database the company has already collected from stock distributors and photographers.
Copyright owners might also be prepared to work with their professional organizations to make sure that any final orphan works package meets everybody's needs. If a new law is drafted, legislators will need to hear directly from those affected by the change.
Few people really want to prohibit the reproduction of old family photos, noted Wolff. "We're not against the local historical society that has all these photos and letters and wants to make use of them on their web site," added the attorney.
"But they (government officials) don't really understand the commercial photography and illustration businesses," she said. "We have to work with them and make sure that creative works are protected."
The U. S. Copyright Office can be found at: http://www.copyright.gov
Download the Report on Orphan Works at: http://www.copyright.gov/orphan
The Senate Intellectual Property Subcommittee is at: http://judiciary.senate.gov/subcommittees/intellectual109.cfm
The House Subcommittee on Courts, the Internet, and Intellectual Property is at: http://judiciary.house.gov/committeestructure.aspx?committee=3
Digimarc is at: http://www.digimarc.co.
PicScout is at: http://www.picscout.com
