Urgent: Orphan Works Bill

- - copyright

I was planning on spending some time looking at the Orphan Works Bill eventually but it appears that I may have missed the boat. Here’s a notice I received this morning:

UPDATE: It appears that the ASMP and PPA are in favor of the bill. Here’s a quote from an email I just received “Making a decision to support any Orphan Works Bill isn’t easy. However, both PPA and ASMP, the only two organizations representing photographers that have actively participated in these discussions, have determined that opposing the proposed House bill would place photographers at greater risk. We believe that supporting the House bill will prevent us from ending up with a law that is far worse.” Visit the ASMP (here).

Here’s the email from the APA:

BREAKING NEWS, May 7, 2008 – The House is meeting today 2:00 p.m. Wednesday, May 7, 2008, 2141 Rayburn House Office Building markup of H.R. 5889, the “Orphan Works Act of 2008″

This means that if you oppose the House Bill as it stands, it is extremely important to make your voice heard before that meeting begins.

At this time, it is understood that the House believes that photographers and other visual artists including their trade associations are in agreement with the current bills. APA opposes both the House and Senate bills as written.

Please take a moment to be heard via a prepared letter of your choice, or by including your own reasoned thoughts in a professional courteous manner.

This link (here) will allow you to be heard.
Scroll down about half way to see “For Photographers”.

It is important to be heard. It is your future.

Martin Trailer
National President

Constance Evans
National CEO

ORPHAN WORKS LEGISLATION IS BACK!

APA’s Position on the Orphan Works Act of 2008

From the onset, APA has been actively engaged in the effort to help solve the orphan works dilemma. We made public our support for the crafting of an amendment that would permit use of verified, i.e. true, orphaned works for certain uses, by way of procedures that are clearly defined in the statute or regulations, while retaining remedies for use by copyright owners in the event of abuse.

APA, in seeking to represent the best interests of its members, takes the position that the legislation offered in both bills — S.2913 and H.R.5889 — does not achieve the goal as we believe was originally intended, and instead provides a distinct road map for the infringement of contemporary works by living artists worldwide. If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.

Therefore, APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns. PLEASE go to this resource page on Orphan Works for sample letters (scroll down for the photographers’ letters) and the ability to automatically contact your specific members of Congress. Great thanks to the Illustrators’ Partnership for making this site available.

The full text of is available as a pdf download (here).

And both the House and Senate versions of the bill are available as pdf downloads on the APANational.com homepage here

Be informed. Be involved.

Thank you

APA National CEO
Constance Evans

APA National President
Martin Trailer

There Are 34 Comments On This Article.

  1. Debra Weiss

    The following is an excerpt from a post written by myself which was on other forums. It will explain to some degree just one of the dangers associated with the passage of this bill.

    The current legislation will not require infringers to jump through
    any significant hoops before using your work. All they will have to do
    is:

    1. Register their intent to use the work at the Copyright Office. This
    will take all of 30 seconds and will serve no purpose whatsoever.
    Are you going to visit the copyright office site daily and
    review tens of thousands of descriptions of orphan photographs
    submitted each week? And if you do, will you recognize your work
    from a text description? And…

    2. After the infringer takes a few seconds to register their intent to
    infringe on your work, they need only pay an orphan works search
    service (and there will be dozens of these, again making it possible
    for others to make more money off of photography than photographers)
    to run an automated query of the available registries. Once these
    third party search services are established, the whole diligent search
    process will take just a minute or two, after which they will provide
    the infringer with a certificate of a failed search for your work.

    The infringer will then be free and clear to do pretty much whatever
    they want with any of your photographs that they might have found on
    the web, or in their file drawers, or scanned from a book or magazine,
    where your name was either lost from the metadata or cropped out when scanning, etc… This is very real, and it is your future if the
    orphan works law passes.

    Please pass this link http://capwiz.com/illustratorspartnership/home/ on to everyone you know. There is even a letter for the general picture taking public. This bill will affect everyone – anyone who shares images online with family and friends is at risk here too.

    You can also visit John Harrington’s blog http://photobusinessforum.blogspot.com/2008/05/orphan-works-2008-wolf-in-sheeps.html
    Scroll to the bottom and you will be able to submit an e-mail directly to the Sub-committee members.

    These need to be received by 2PM EST today. I cannot stress the importance of your taking action

  2. everyone! get involved and submit! it’s extremly easy! just follow the links above indicated by Rob H. and Debra W.

  3. This is puzzling (perhaps by design). With so many loopholes opening vast opportunities for abuse, why would ASMP and PPA support this? Is it really out of fear of far worse legislation? Or something else?

  4. I’ve just sent in my opposition to the bills using the links provided. After reviewing several sources and the arguments for and against I’m firmly against this bill.

    Librarians and museums have asked for a band-aid and congress would like to cut your leg off instead.

    Unleashing this massive burden on photographers simply because you want to retouch your parents wedding photos or reproduce a crumbling photograph for preservation or make a documentary film using old photos and letters seems stupid to me.

    There has to be a better way.

  5. My main concern is that there is still the idea of private registries. In my experience nothing remains in the private sector for long before being a charged service, especially if the service is something required for the customer’s well being.

    They’d have us by the balls. They can say it’s a “reasonable” fee, say, a dollar an image… and for a student looking to protect their work that would be what, 40,000 dollars a year? How many photos do people take?

  6. Total cluster fuck. Umpteen photo organizations, with the same amount of chiefs. I’ve said it on any forum that will hear me many times over. UNIFICATION…PPoA had their nose to grindstone before ASMP got involved. APA wasn’t even at the table. Now APA is pissed at PPoA and ASMP…Meanwhile I’ve heard comments from some clients that some photographers don’t even have a listing in the phone book. How’s that for caring about your work and professionalism? You gotta be able to be found…
    Until the organizations are willing to put aside power plays, and egos and get together under one umbrella,
    photographers will continue getting sand kicked in our faces.
    I’m sick of sounding like a broken record.

  7. What I really don’t understand here is this…….OK, I get it, it is going to end up screwing all creators of creative work…the corporations win! everyone can use whatever they want…
    but what will they end up with for advertising and branding imagery?…if the images they use for their campaigns can end up orphaned, then in someone else’s ads, branding etc…..how will their brand be viewed and separate from others?

    Is there anyone looking at this from this viewpoint?

  8. Yep, got this at the nth hour from the APA too. Wished they’d have been tracking it a little closer so I could be more proactive leading up to it.

    Good to see that Chase Jarvis laid it our in his very visible blog too. Maybe we’re getting a foothold here.

  9. Debra Weiss

    @9 While the idea of unification is at times very appealing, it unfortunately is not always a practical idea. There are differing business models and differing needs. It is not only about power plays and egos. Even with unification, the organizations would still have to remain somewhat independent with a good deal of autonomy.

    The following is a very thorough and detailed account of APA’s and others’ roles and participation RE: Orphan Works written by Constance Evans, APA National CEO. Being a former APA National CEO myself, from my experiences, I believe her account to be completely accurate and I think it’s important for all to know how this situation came to be.

    APA and countless other associations have worked vigorously on Orphan
    Works for years. No organization should be denigrated when making
    comments on this subject that we are all passionate about. Whether
    or not APA or any other association has a lawyer on staff is not the
    issue — we have ALL been working on this. (Just take a look at many
    organization websites and you’ll see what’s been going on or have a
    look at OW archives on the web.) To suggest that only two or three
    organizations have been fighting for the best legislation possible is
    just not accurate.

    Some background: Two years ago the Imagery Alliance (IA) was
    established and comprised of 21 trade associations from the US and
    around the world (including APA, ASMP, PPA, SAA, EP, NPPA, WHNPA,
    PACA, NANPA, GAG, AIGA, IPA, SI, ADC, PLUS, SPE, ASPP, AOP, BAPLA,
    CEPIC, and ACMP.) The original purpose of IA was to bring all of our
    groups together for the express purpose of sharing information,
    positions, ideas, etc. on Orphan Works and other copyright issues
    with the intent of finding common ground.

    The goal was to present a unified position in representing the
    interests of photographers and visual artists. With information out
    on the table, those providing direct testimony or attending closed
    meetings with members of Congress were given the authority to speak
    on behalf of us all. PPA and ASMP asked for this authority, we were
    pleased to grant it, and indeed collaborated closely in our advocacy
    efforts. We stood together and in 2006 Orphan Works legislation was
    withdrawn before a vote was taken. Working together, we coordinated
    email and letter writing campaigns, made trips to Washington, held
    meetings and conferences, prepared in-depth position papers, etc.,
    etc.

    An assumption was made on the part of most associations in the IA
    that we would continue working together as we had in 2006 and would
    work to speak with one unified voice. Unfortunately, this was not to
    be the case in 2008. The organizations which had previously asked
    for the authority to speak for us all, did not advise the IA that
    they would instead work with a select few organizations. Relevant
    information, points crafted, and compromises considered in the time
    leading up to the creation of this new legislation was shared between
    ASMP, PPA, GAG and PACA. The IA collectively as well as individual
    associations such as APA, SAA, EP, NPPA, IPA, and others representing
    the interests of thousands of photographers and illustrators were not
    given information or the opportunity to weigh in on possible
    solutions for compromise.

    That said, if an organization wants to speak on behalf of its
    members, it clearly does not need permission from other
    organizations. But this was not the case at the March 13, 2008
    hearing on Orphan Works for the House Judiciary Subcommittee on
    Courts, the Internet and Intellectual Property. In testimony given
    by Vic Perlman of ASMP, his prepared statement advised members of
    Congress that he was speaking on behalf of “virtually every major
    trade association…” Below is the first sentence of the Executive
    Summary:

    “ASMP’s testimony today is made on behalf, not of just ASMP and its
    members, but of virtually every major trade association in the United
    States that represents the interests of freelance photographers, as
    well as several major organizations representing freelance commercial
    artists and illustrators.”

    (A similar statement is repeated in the full text, which you can read
    here http://judiciary.house.gov/media/pdfs/Perlman080313.pdf)

    The IA did not learn until March 13, 2008 that Vic would be
    testifying before the House Subcommittee on that very day. After the
    fact, the IA was told there had been no time for the ASMP testimony
    to be shared in advance of the hearing, (other than with GAG, PPA and
    PACA.) But here’s the difficulty — closed meetings were going on
    for months prior to the hearing and the IA was not kept in the loop,
    not given the opportunity to participate in developing points or
    concessions, or even given the opportunity to review the positions
    that would be presented to Congress. And yet, Congress has been led
    to believe that these positions were authorized and made on behalf of
    us all.

    APA has been deeply involved in the Orphan Works issue from the
    onset. We believe the interests of our members, visual artists
    worldwide, and the industry as a whole would be infinitely better
    served if our cause was being championed with one strong well-
    informed voice — not by way of opinions drafted in private meetings
    with the input of a few.

    APA cannot endorse The Orphan Works Act of 2008 as put forth in
    either House or Senate version, believing that it is not in the best
    interests of our members. We believe legislation can and should be
    narrowly written that provides solutions for the use of those works
    that are truly orphaned. If you would like to read our position,
    please go to http://www.apanational.com

    We commend the considerable efforts of ASMP and PPA on this and many
    other issues. While we do not agree with their endorsement of
    H.R.5889, (House version on Orphan Works), we respect their right to
    take this position and ask for the same consideration.

    Sincerely,
    Constance

    Constance Evans
    APA National CEO

  10. “Vic Perlman of ASMP, his prepared statement advised members of
    Congress that he was speaking on behalf of “virtually every major
    trade association…”

    That is absolutely disgraceful. Will our friend Vic go down in history as selling out the entire worlds creative community – on a lie?

  11. Bruce Cameron

    I’m not sure why Bolster has his nose in a twit, but APA has been on this problem for quite a while. Bashing another trade organization while you praise ASMP and PPA is not going to help the problem go away.

    ASMP is on the wrong side of the tracks on this one. ASMP leadership tends to want to hog the credit for the work that other trade groups have done as equal partners. They do not represent me or my business. APA has always worked quietly behind the scenes, getting real work done rather than going for the limelight.

    Pearlman’s boasting to Congress may make him look good to his membership but does nothing to solve the problem at hand.

  12. Debra Weiss

    @ 13 – Yes, disgraceful is just one of the many adjectives I could use, and anyone who has read my posts on both EP and APAnet know where I stand, but rather than looking back we need to move forward. Here is the link to the members of the House subcommittee:

    http://judiciary.house.gov/committeestructure.aspx?committee=3

    There is no longer a Senate subcommittee. Sen. Leahy, chairman of
    the now defunct committee decided that this was a really important
    issue so he he disbanded the committee to take it to full committee, except now there is no committee. Just Leahy and four legal counselors whose names they will not give out to an individual.

    You can send letters and faxes to Sen. Leahy. The fax # is
    202.224.9516. They get faxes via a real fax machine, not computer, so
    please bury them with paper on an ongoing basis – and for the sake of the environment, please try to make it recycled paper.

    Real letters and faxes (providing they’re actually coming out of fax machines and not a computer) will always be more effective.

    No one should remain neutral on this matter.

  13. @14 Bruce, my post in no way attempts to bash APA. If it reads that way, then call me a poor communicator. It wouldn’t be the first time…Nor was I praising PPoA or ASMP. As an ASMP member I wonder aloud if they are doing the right thing.
    However, since they are on the inside and I’m on the outside, I need to give people I elected the chance to do what they think is best. That is why people are elected, and why I’m not running for office anytime soon.

    @Post12 The APA CEO says…”The organizations which had previously asked for the authority to speak for us all, did not advise the IA that they would instead work with a select few organizations. Relevant information, points crafted, and compromises considered in the time leading up to the creation of this new legislation was shared between ASMP, PPA, GAG and PACA. The IA collectively as well as individual associations such as APA, SAA, EP, NPPA, IPA, and others representing the interests of thousands of photographers and illustrators were not given information or the opportunity to weigh in on possible solutions for compromise”.

    This backs my APA “not being in the game” comment. I know they were previously involved, but that was old news and this is now. Again, not bashing APA. I know if they could have been involved they would have. I still maintain a larger, unified organization would be better and have more clout than individual organizations. PPoA has over 22,000 member photographers, ASMP around 5,000 and APA even less than that. Add other organizations, and maybe it adds up to 50,000 people. That many people would have SERIOUS clout and better financial resources to fight the battles that need to be fought. I realize one size doesn’t fit all. It never will.
    All that can be done is to affect legislation for the greater good.

  14. I’m with Giulio on this. who cares about the organizations. just do what you can do as an individual. That is call, fax, and email. if we all just do it. then alot gets done.

  15. @19 The point is as individuals we are weak. Don’t dismiss the photo organizations because they are having a problem getting united right now. Without the photo organizations, I’m sure you and I wouldn’t even have known about this legislation. PPoA and ASMP is advising people NOT to contact their law makers. They aren’t doing this to anger other photographers or photo orgs, they are doing this with careful inside knowledge and are looking down the road at other possible scenarios where photographers will need to press a united front to prevent further bad laws from being passed. They claim this is a compromise. Sometimes that is as good as is gets…

  16. As a UK based photographer with no vote I feel powerless in this whole process. If the worst happens then our best course of action is to demonstrate that the system does not work by registering some iconic and copyrighted images as “orphans”. I suggest a recent wellknown pic of “slightly looking grumpy old woman in room wearing crown” (Are you reading this Annie?)

  17. Debra Weiss

    @ 19 – Nothing could be further from the truth. Letters from thousands of individuals will be much more effective than a few letters from organizations writing on behalf of their members. There is always more strength in numbers.

    RE: ASMP’s letter sent yesterday – Here is what I posted on EP and APAnet for those on this blog that are not members of either forum.

    ASMP has sent a letter to their members asking them NOT to write their Congressmen. Mmmmm.

    They are asking their members not to buy into the “hysteria” and are claiming that if everyone bombards their Congressmen urging them to vote no, it will damage what they are working to achieve.

    Here’s my advice: BURY them with real letters and faxes. (Please try to use recycled paper.) I believe they are much more effective than e-mails. You can use the pre-written letters from http://capwiz.com/illustratorspartnership/home/

    Oh – what the hell – send them an e-mail too!

    The senate version S.2913 The Shawn Bentley Orphan Works Act of 2008 has been held off until next Thursday. This gives you almost another entire week to oppose this bill.

    Senator Patrick Leahy (D-VT) is the bill’s sponsor. The fax # is 202.224.9516. Other members of the Judiciary Committees are Sen. Orrin Hatch (R-Utah), and in the House – Rep. Howard Berman (D-Calif.), Rep. Lamar SMith (R-Texas). The bill is also co-sponsored in the House by Committee Chairman John Conyers (D-Mich) and Rep. Howard Coble (R-NC).

  18. Jack Reznicki

    Here is PPA’s Statement posted below my personal statements.

    Let me also as, as a former PPA President and a former president of APA/NY back in the ’90′s that PPA is the only association that has someone constantly on Capital Hill, for this issue and many others. Like a Nation-Wide Health care plan for small associations. Right now only huge corporations like General Motors can do this. National Associatins like PPA have to get health insurance for members on a state by state basis and can not leverage a large membership.

    The timeline quoted by some is a bit off. PPA asked when this issue was first forming for input and it wasn’t forthcoming by other associations until later down the timeline. Those that claim otherwise see it from their perspective, which is not our perspective on this.
    The reason we knew about it early is that we’re always on Capitol Hill. That’s how you get to be effective there. Not by showing up for just one issue. Lines of communication take years to build there. Good, bad, or indifferent, that’s the reality of our system.

    There are some other things said that I also don’t remember the same way as others, but hashing them out will not help anything.
    Enough to say that being so divided and sending in letters at this stage of the game will hurt our industry on the Hill for what we see as many, many more attacks on Copyright in the future. The fact that we are so easily divided does not bode well for us as an industry.

    PPA involved in this legislation from the very start. I can say because we spend so much time and money on Capitol Hill, we understand the culture of our legislative process more than any other association at this time. We have also done more than any other association regarding protecting our member’s copyright. Copyright is a very, very important issue for us. Our Board a few years ago, allocated half a million dollars to file suit against one of the “Big Box” marts because they were copying copyrighted images. Lucky for us, that was settled quickly and put all the “marts” on notice that we would put teeth into defending our members copyright. We have much dialog with these companies and send out many “recon” teams to insure compliance of copyright.

    As someone in this debate said, “We have not suddenly become stupid” in regards to protecting our member’s copyrights. Copyright is too important an issue for PPA.

    Are we happy about an Orphan Works Bill? No, not at all. Are we opposing it? No.

    Please be aware also, that Canada has had an Orphan Works Law since 1990. While their law is structured differently than the two versions on the Hill that are being considered, the rights grab that everyone claims has not happened there. And as an image maker if you can prove that you are easily found, the infringer can not hide behind any Orphan Works Law that may pass.

    We may not be able to win this battle, but we can lessen the loss. And more importantly, we need to be able to fight the war, which is certainly here. Which is why PPA is recommending not to fight this bill, this way (writing to Congress).

    The greater harm possible here is actually not from this legislation, the real harm may be the harsh feelings between associations that need to stay united for many more battles and the wars in the future.

    All in all, as the wonderful owner of this blog (which I’ve read for a while) says, read everything, be informed, and make up your own mind.

    Below is a statement from PPA-
    ————-

    This statement can also be found at http://www.ppa.com in the Government Affairs section. There are also links for both the Senate and House bills.

    PPA cautious but optimistic about new legislation

    Noting substantial improvements over previous orphan works legislation, Professional Photographers of America (PPA) remains cautious yet optimistic about two newly proposed orphan works bills.

    The two separate bills were introduced April 24th—one in the House of Representatives and the other in the Senate. While PPA maintains a cautious concern about these bills, analysis indicates that they are significantly improved compared to previous orphan works legislation.

    Orphan works, loosely defined as copyright-protected material where the copyright owner is unknown or cannot be located, has been debated on Capitol Hill for several years. PPA was called on to testify about orphan works at congressional hearings two years ago and has since worked tirelessly to mitigate what seemed destined to be a bad situation for photographers.

    One of the factors making the going so tough for photographers is the very broad public and congressional support for orphan works legislation. There are perhaps millions of photographs owned by museums, libraries and archives that cannot be legally used because the owners cannot be located. Similar problems exist when a consumer can no longer locate his or her portrait or wedding photographer.

    The pressure for significant, broad-based change has been mounting against photographers for a number of years—even very pro-copyright members of Congress have vowed that orphan works legislation would be passed.

    Despite its work on Capitol Hill, PPA was not sure what form the new legislation would take. Certainly, there are improvements which we think can, and should, be included in the proposals.

    Generally, though, it is our opinion that the newly proposed bills are significantly more favorable than the legislation proposed two years ago. More importantly, based on expected changes in the House IP Subcommittee on Intellectual Property, we believe that if the current legislation is not approved, we can expect much less favorable legislation in 2009.

    Under these proposed bills, the requirements to become an orphan work and claim protection from copyright infringement are stringent and narrow. Key provisions include:

    * A photograph without a copyright notice would not automatically qualify as an orphan work.
    * The proposed bills require a “diligent, good faith” search based on industry best practices as catalogued by the Copyright Office. This includes searching databases certified by the Copyright Office in addition to the Office’s own records.
    * Failure to meet the requirements of a diligent search, or adhere to the usage requirements, will void any orphan works protection.
    * If the copyright owner of an orphan work photograph emerges, the user(s) of that photograph would have to provide reasonable compensation. Failure to negotiate and provide that payment in a timely manner voids orphan works protections.
    * A “safe harbor” provision will protect nonprofit institutions’ use of qualifying orphan works (such nonprofits include museums, libraries and public archives), but this provision is very narrow and applies only to non-commercial uses.
    * Orphan work protection is excluded for “useful articles” such as mugs, T-shirts, and other similar trinkets in the House version.
    * The House version also requires that a user file a “Notice of Use” along with documentation of the diligent search.

    Two other helpful provisions are included, due in part to PPA’s lobbying:

    * Both bills task the Copyright Office with conducting a study on a small copyright claims alternative dispute resolution system and submitting its findings to Congress within two years of the bill’s enactment. During the debate two years ago, PPA argued aggressively for a small-claims-type process like this, which would allow photographers to pursue reasonable compensation without the expense of filing a federal court lawsuit. We continue to believe that there is a tremendous need for photographers to be able to seek redress for infringements outside of the federal court system.
    * Both bills mandate a study by the U.S. Comptroller into the deposit requirements of the current copyright registration process. PPA is pleased with this, as we have argued for a number of years that the current process—specifically the deposit requirement—discriminates against photographers. We believe this study is a direct nod to photographers and an attempt by the writers to make otherwise contrary legislation more palatable.

    Both versions of the bill set an effective date of January 1, 2009, but carve out an exception for photographs and other visual material. The House version sets the effective date for visual arts at January 1, 2013 or after two searchable databases receive Copyright Office certification. The Senate version sets the date at 2011.

    We feel certain that orphan works legislation is going to pass. It has been our position that photographers should work within the system to effect the most positive legislation possible.

    Expecting a worse fate if we wait until 2009, and recognizing that it is possible to gain some small improvements yet, PPA is generally pleased with the proposed bills’ direction. We are grateful for significant improvements made on behalf of photographers and artists. We stand ready to support what we hope will be the very best legislation possible—allowing us to prepare for the future copyright fights that are sure to come. To view a complete copy of the proposed bills, go to:

    Orphan Works Act of 2008 (H.R. 5889)

    Shawn Bentley Orphan Works Act of 2008 (S.B. 2913)

  19. Whats really funny is that the free promo slide show Rob made to help photographers got more comments on APE then this thread. Is it that the majority of photographers don’t really know what the Orphan Works means to them or is it that they just don’t give a shit?

  20. If the purpose of the orphan works bill really is to protect users,especially academics and museums from lawsuits from long lost parents who turn up then there is no reason why using an orphaned work commercially should not incur a similar fee to that paid if the image was sourced from an agency. This would prevent the cynical creation of orphans in order to get images for free. Monies raised could fund help for photographers in distressed circumstances or help them to retrain so as to become useful members of society :-)

  21. I’m having a really hard time believing several things here:

    1. That, individuals sending in letters as opposed to letting an organization do all the work somehow weakens the community. A strong community in my mind is willing to use all available means to get a point across. The writers strike proved that to me.

    2. That, if the legislation is defeated congress will craft something worse in response.

    3. That, sucking up to the right people will give us more leverage in future copyright fights.

    Everyone can read the bill themselves to see if they like the terms it offers and write a letter, fax or email to reflect it but the arguments above that I’m hearing from APA and PPA are not supported by anything but insider knowledge. Maybe I’m just naive as to how this process works.

  22. Jack Reznicki

    Photo Editor wrote:

    >I’m having a really hard time believing several things here:
    1. That, individuals sending in letters as opposed to letting an organization do all the work somehow weakens the community. A strong community in my mind is willing to use all available means to get a point across. The writers strike proved that to me.

    In response- The Writer’s GUILD worked because they were a guild. They were organized. More power to them. Wish we had that. We’re basically a rabble.

    When ASMP tried for guild status many years ago, before my time, there were photographers testifying in Washington against it. Amazing. We still suffer.

    And with one group, talking with the Congressional aides (where the real things get done) for years, hearing one thing and then getting a lot of emails that are of a different stand, then we look like a disorganized industry, which we are. It points to the fact we can not control any votes nationally. Not a good thing when you want to have a voice in Washington.

    After many years of working in several photographer organizations, I can tell you that photographers, as most independent creatives, have a feeling that they as individuals know better than anything anyone else who can tell them. And they can only relate to what affects them directly.

    The idea of doing something for the greater good and something that might take compromise is not a concept creatives understand. As a result, we are so easily manipulated and screwed by big corporations.

    It’s like the discussions I have with my lawyer, who’s an IP expert. Photographers would rather get information (usually bad) from other photographers online, rather than get real legal advice from a real lawyer.

    I’m sorry, but you can continue to believe that this is “Mr Smith Goes to Washington” but I’d rather live in the real world.
    I’ve been active, as a commercial photographer, with PPA because they are the only association I’ve been involved with that actually works, that actually does things, that actually gets things done.

    >2. That, if the legislation is defeated congress will craft something worse in response.

    Look to see the next head of the Judiciary Committee will be. As stated, going from Berman to Boucher will not be good for any copyright legislation coming up.
    Don’t “believe” it, but it’s true.
    Again, you can go with the creative’s gut, or listen to those that are knowledgeable in this field.
    I’ll live in the real world.

    >3. That, sucking up to the right people will give us more leverage in future copyright fights.
    Everyone can read the bill themselves to see if they like the terms it offers and write a letter, fax or email to reflect it but the arguments above that I’m hearing from APA and PPA are not supported by anything but insider knowledge. Maybe I’m just naive as to how this process works.

    All I can say is yes, you are naive as to how this process works.

    And it’s not “sucking up”. That doesn’t work. What works is being a professional, communicating, and conducting yourself as a professional who understands the game. Like anything else, it has to do with people trusting who they’re dealing with, believing them, and having a history.
    It works in Washington, it works in advertising agencies, it works in magazines. It’s all about people to people relations.

    As a result of being all knowing on everything, we as a creative community will stay as powerful as the Jazz musicians that gave away their copyrights in the ’50′s for peanuts to corporations that made millions off their music.

    As said, PPA didn’t suddenly become stupid on these issues.

    And you, as a really good photo editor, seem to be an expert as to how legislation gets done in our Capitol, then more power to you.
    Do you also ask your auto mechanic when your tooth hurts?

    I’m not trying to be snide here. My apologies for seeming smarmy on the Internet, not my intention. It’s too easy to seem that way on the ‘net.
    But I do want to point out what I’ve seen for the last 20 years that I’ve been involved in Photographers associations and photographer politics. It’s all very frustrating dealing so so many people that always know better than research and information. Working on gut reactions seem to be the rule.

    That is not what happened BTW with the writer’s guild. I’m sure if you talked to their leaders, you would hear an earful of what it took to keep people in line.

    I saw this same thing from both PPA members and non-members a few years ago when PPA tried to start a licensing scheme for photographers ala ASCAP. We even hired someone from ASCAP. There was so much bad info on the Internet, and we were slammed from members and non-members, that we had to kill it. I said then and now, it was a big mistake, but photographers got what they wanted. And today I’m answering a lot of questions about how to license work for members.

    Kelley was so right when Pogo said “I’z have met the enemy! ….and he is us.”

    That’s what I see here. Sorry if I get emotional about all this, but over the years, the fighting gets frustrating. I’m really hoping for real dialog between creatives, so that we are united for future fights, that will most definitely come.

    Again, I’ll respect anyone’s decision, after they get real facts and figures, not just rhetoric.

    Respectfully,

    Jack

  23. #22, Jack Reznicki: Please be aware also, that Canada has had an Orphan Works Law since 1990. While their law is structured differently than the two versions on the Hill that are being considered, the rights grab that everyone claims has not happened there.

    Jack, and others:
    Not only is Orphan Works structured differently in Canada, their copyright laws are structured differently as well. Canadian copyright law states that the party that commissions or pays to hire the photographer owns the copyright. Therefore, most, if not all, Canadian commercial photographers probably don’t own the copyright to their images. To own your copyright in Canada you need to get the commissioning party to transfer to you the copyright. Good luck with that. Are you personally willing to surrender your copyrights to the commissioning party? I have to imagine that not owning your copyright makes a big difference in whether Orphan Works is evil or benign.

    Steve Skoll

  24. Jack Reznicki

    #27 Jack, and others:
    Not only is Orphan Works structured differently in Canada, their copyright laws are structured differently as well. Canadian copyright law states that the party that commissions or pays to hire the photographer owns the copyright. Therefore, most, if not all, Canadian commercial photographers probably don’t own the copyright to their images.

    Steve,

    Very good point. But it misses all my other points doesn’t it?

    You said – “Jack, and others:
    Not only is Orphan Works structured differently in Canada, their copyright laws are structured differently as well. Canadian copyright law states that the party that commissions or pays to hire the photographer owns the copyright. Therefore, most, if not all, Canadian commercial photographers probably don’t own the copyright to their images. ”
    ——-
    Steve,

    OK, I’ll ask. Where do you get the “probably”? Can you quote any facts and figures?
    The “few” commercial photographers I know in Canada, do get their copyright, in their contracts. It’s made them more savvy.
    Is it all? I doubt it.
    Same as here in the US, “most” commercial photographers don’t register their copyright. I know this from numerous lectures I give on Copyright, where I ask the audience how many people have EVER registered their work? If it hits 5%, it’s unusual. 2% is more like it.

    And from what I hear from my lawyer, a “lot” of commercial photographers sign POs with onerous terms, like copyright transfers and indemnity clauses. That’s a whole other thread.

    But, OK, let’s say I’ll concede your point.
    Now, what about all my other points?
    You see, when someone on the ‘net, takes one small point to argue, after a long post like mine, that’s a tactic known as a Red Herring. It throws off the discussion into a rabbit hole.
    So if I concede that point to move the dialog, I’ll ask, respectfully, for I’d love a good dialog (it’s a NY thing), what about the other points?

    And I thank the PhotoEditor of this great blog for posting the bill as introduced in the House. Now, how many photographers will actually read it?

    Jack

  25. Hi Jack,
    I get the “probably” from the fact that I don’t know many, if any, Canadian photographers, and to write as if I did would have been presumptuous. From your comment about the “few” that you know, it looks like you don’t know very many either. Which leaves your “facts and figures” a bit stilted.

    “The “few” commercial photographers I know in Canada, do get their copyright, in their contracts…”

    Good for them! But “few” is not very many. Which means its quite possible that most Canadian commercial photographers don’t own their copyrights. Which leads us back to my point that by not owning your copyright, OW law is quite possibly (probably) a moot point in Canada.

    “…it misses all my other points doesn’t it?”
    No it doesn’t. Not speaking to your other points doesn’t mean I missed them. I took issue with your point about Canadian OW law. There is no need to address all your points to take issue with one of your points.

    “You see, when someone on the ‘net, takes one small point to argue, after a long post like mine, that’s a tactic known as a Red Herring. It throws off the discussion into a rabbit hole.”

    Red Herring? There is nothing misleading or distracting in my post. And my post in no way moves the conversation off-topic. I posted about copyright law, OW, and the respective differences between U.S. and Canadian copyright law. All on-topic and appropriate. I don’t see the rabbit hole. Unfortunately, long forum posts on the web simply don’t read well. Its the nature of the beast.

    “…what about the other points?”

    What about them? Maybe, and I do mean maybe, I agreed with some of them, so they weren’t of issue to me, so there would be no need to discuss them. (I agree that we are our own worst enemy.) The difficult work to be done is where we disagree, not where we agree.

    Best,
    Steve Skoll

  26. Debra Weiss

    @22
    In addition to the fact that the law is different in Canada, so is the culture. Canadians just look like us, they’re nothing like us and I bet most Canadians would happily agree with me on this.

    PPA has indeed been more pro-active than any other organization and has put a great deal of time and money into legislative issues. That doesn’t make them right all of the time. Not being one to believe in coincidence, it is a bit curious that one of these great improvements to the bill, the Useful Articles provision, benefits only retail photographers, which is the bulk of the PPA membership.

    “The greater harm possible here is actually not from this legislation, …”

    Yes, it is.

    “Both versions of the bill set an effective date of January 1, 2009, but carve out an exception for photographs and other visual material. The
    “House version sets the effective date for visual arts at January 1, 2013 or after two searchable databases receive Copyright Office certification. The Senate version sets the date at 2011.”

    And those two searchable databases can be ready as soon as the bill is passed. Can you spell Getty and Corbis?

    @26
    “In response- The Writer’s GUILD worked because they were a guild. They were organized.

    The similarities between these industries and non-analogous.

    “When ASMP tried for guild status many years ago, before my time, there were photographers testifying in Washington against it. Amazing. We still suffer.”

    Photographers testified against it because it would have stripped them of their copyright protection. All work as a guild member would have been work for hire.

    “And with one group, talking with the Congressional aides (where the real things get done) for years, hearing one thing and then getting a lot of emails that are of a different stand, then we look like a disorganized industry, which we are.”

    When that one (or two) groups talking are making decisions that are not in the best interests of the very people they are speaking for, I’ll take my chances on looking disorganized.

    “I’m sorry, but you can continue to believe that this is “Mr Smith Goes to Washington” but I’d rather live in the real world.”

    Actually Jack, it’s a wonderful thing that our system allows us to voice our dissent and yes, even in the real world, we can make a difference.

    “Look to see the next head of the Judiciary Committee will be. As stated, going from Berman to Boucher will not be good for any copyright legislation coming up. Don’t “believe” it, but it’s true.”

    Please – where did you get your crystal ball because I like to purchase one for myself.

    “And it’s not “sucking up”. That doesn’t work. What works is being a professional, communicating, and conducting yourself as a professional who understands the game. Like anything else, it has to do with people trusting who they’re dealing with, believing them, and having a history.
    It works in Washington, it works in advertising agencies, it works in magazines. It’s all about people to people relations.”

    Well, then something seems to be lacking in these people to people relations.

    “As a result of being all knowing on everything, we as a creative community will stay as powerful as the Jazz musicians that gave away their copyrights in the ’50’s for peanuts to corporations that made millions off their music.”

    Thanks Jack. The above is an excellent case for exactly why everyone should oppose this bill.

    “I saw this same thing from both PPA members and non-members a few years ago when PPA tried to start a licensing scheme for photographers ala ASCAP. We even hired someone from ASCAP.”

    Again, comparisons between these two industries are non-analogous.

  27. Debra Weiss

    Correction:
    “The similarities between these industries and non-analogous.”

    This should have said “comparisons between these industries are non-analogous.”

  28. Jack Reznicki

    Debra Weiss wrote:

    PPA has indeed been more pro-active than any other organization and has put a great deal of time and money into legislative issues. That doesn’t make them right all of the time.

    —-

    Debra,

    No one can be right all the time, but all that time and money makes us more experianced and knowledgeable as to how things work in Washington. The frustration is not when people disagree, but rather when they shut out any input that doesn’t fit their preconceived opinions.

    ———
    Debra Weiss wrote:

    Not being one to believe in coincidence, it is a bit curious that one of these great improvements to the bill, the Useful Articles provision, benefits only retail photographers, which is the bulk of the PPA membership.

    ——–

    And if people responded the first time we asked for input, maybe there would be more change . But then from what I’ve heard, we don’t agree on that timeline.

    But the your implication that we had that much influence into that wording, just to help our members, is one of those things that keeps our industry splintered into such separate cliques.
    If we did have that much influence, and frankly I wish we did, it would be from hard work on the Hill.
    And if it was possible, why wouldn’t we look after our members? What crime would that be?

    BTW, with the number of our members who say they do commercial work, I’d dare say we represent more “commercial” photographers than APA does. So believe it or not, that is part of our constituency. As a 100% commercial shooter, and as past PPA president, I’d say you’d be shocked that we don’t segregate photographers. We even have a commercial track at our Convention because of the number of commercial shooters we have.

    ——-

    Debra Weiss wrote:

    And those two searchable databases can be ready as soon as the bill is passed. Can you spell Getty and Corbis?

    —-

    LOL. That’s called “fear mongering”. Just what crystal ball are you looking into to come up with that?
    Will the Communists be far behind?
    When you want to stir people up, call out the Bogeyman.

    ——–

    Debra Weiss wrote:

    Photographers testified against it because it would have stripped them of their copyright protection. All work as a guild member would have been work for hire.

    ————

    Yeah. Jack Reznicki would have been doing work for hire for Jack Reznicki Productions.
    That wasn’t the reason.

    And it was funny to have one of those photographers who testified against it to sit with me when I sat on the APA board in NY when business wasn’t so good for that shooter. I’ll tell you that was strange.

    APA was formed to get a standardized Estimating and Billing form, like the TV industry had with the advertising agencies. But because we were not a guild, the 3 A’s basically said they would ignore anything about such standardized forms. And they did. We had no clout.

    ———-

    “Look to see the next head of the Judiciary Committee will be. As stated, going from Berman to Boucher will not be good for any copyright legislation coming up. Don’t “believe” it, but it’s true.”
    Please – where did you get your crystal ball because I like to purchase one for myself.

    ——-

    Debra, the crystal ball is easy. Just spend the time in Washington and see who’s stepping down and who’s next in line. It’s really easy if you spend the time to learn what is going on in Washington.

    This is one future you don’t need a crystal ball to read.

    ————-

    Debra wrote-

    “As a result of being all knowing on everything, we as a creative community will stay as powerful as the Jazz musicians that gave away their copyrights in the ’50’s for peanuts to corporations that made millions off their music.”
    Thanks Jack. The above is an excellent case for exactly why everyone should oppose this bill.

    ———

    Funny, I thought I was making a point about staying disorganized and being easy pickings, but I can see how you saw it. But to continue saying that the sky is falling because of this bill is just something to rile people up. I don’t like the bill, but I don’t see the widespread rights grab that you keep telling people. That was my point of the Canadian comparison.
    ———-

    Debra wrote:

    “I saw this same thing from both PPA members and non-members a few years ago when PPA tried to start a licensing scheme for photographers ala ASCAP. We even hired someone from ASCAP.”
    Again, comparisons between these two industries are non-analogous.
    ———-

    The comparisons between these industries was not my point at all.

    My point was that that process and what was spread on the Internet about it, the stir it caused, was very, very similar to what is going on now.
    Photographers fixated on the trees, even if the trees didn’t exist, and it made photographers lose the forest.

    And frankly, I’m done posting here. I’m not going to change your mind and vice versa. Hopefully people will read into this issue, like reading the actual bill itself.
    Reading the current version and then reading the original one presented a few years ago, I think is also enlightening.

    It’s now late, the weekend is starting, my jury duty is over (yeah), and I’m prepping for a shoot next week, so I wouldn’t be here, fun as it’s been.

    So if you want, please take the last word here ;->

    Debra, if you’re attending the Infinity Awards this Monday in NY, I’d love to continue this discussion over a drink there.

  29. Debra Weiss

    Jack,

    Absolutely no crime in looking after your members. That is exactly what the trade organizations are supposed to do.

    I think there are many people waiting in the wings to cash in on what will definitely be a cash cow – and compared to others that might jump into that arena, Corbis and Getty are probably not the worst of them. I don’t believe most photographers realize what the impact of this bill will be on both a creative and financial level – the registrations alone will be financially devastating to some.

    You are correct in that we are not going to change each other’s minds. You are intent on defending something that in my opinion is indefensible.

    Am not certain yet that I am going to the awards, but if I do, would be glad to have a drink with you.