H.R.5889 Orphan Works Act of 2008 (Introduced in House)

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H.R.5889
Orphan Works Act of 2008 (Introduced in House)

SECTION 1. SHORT TITLE.

This Act may be cited as the `Orphan Works Act of 2008′.

SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.

(a) Limitation on Remedies- Chapter 5 of title 17, United States Code, is amended by adding at the end the following:

`Sec. 514. Limitation on remedies in cases involving orphan works

`(a) Definitions- In this section, the following definitions shall apply:

`(1) MATERIALS AND STANDARDS- The term `materials and standards’ includes–

`(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners;

`(B) sources of copyright ownership information reasonably available to users, including private databases;

`(C) industry practices and guidelines of associations and organizations;

`(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and

`(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.

`(2) NOTICE OF CLAIM FOR INFRINGEMENT- The term `notice of the claim for infringement’ means, with respect to a claim for copyright infringement, a written notice that includes at a minimum the following:

`(A) The name of the owner of the infringed copyright.

`(B) The title of the infringed work, any alternative titles of the infringed work known to the owner of the infringed copyright, or if the work has no title, a description in detail sufficient to identify it.

`(C) An address and telephone number at which the owner of the infringed copyright may be contacted.

`(D) Information from which a reasonable person could conclude that the owner of the infringed copyright’s claims of ownership and infringement are valid.

`(3) OWNER OF THE INFRINGED COPYRIGHT- The `owner of the infringed copyright’ is the legal owner of the exclusive right under section 106 that is applicable to the infringement in question, or any party with the authority to grant or license that right.

`(4) REASONABLE COMPENSATION- The term `reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

`(b) Conditions for Eligibility-

`(1) CONDITIONS-

`(A) IN GENERAL- Notwithstanding sections 502 through 505, and subject to subparagraph (B), in a civil action brought under this title for infringement of copyright in a work, the remedies for infringement shall be limited in accordance with subsection (c) if the infringer–

`(i) proves by a preponderance of the evidence that before the infringement began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement–

`(I) performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

`(II) was unable to locate the owner of the infringed copyright;

`(ii) before using the work, filed with the Register of Copyrights a Notice of Use under paragraph (3);

`(iii) provided attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if such owner was known with a reasonable degree of certainty, based on information obtained in performing the qualifying search;

`(iv) included with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;

`(v) asserts in the initial pleading to the civil action the right to claim such limitations;

`(vi) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and

`(vii) at the time of making the initial discovery disclosures required under Rule 26 of the Federal Rules of Civil Procedure, states with particularity the basis for the right to claim the limitations, including a detailed description and documentation of the search undertaken in accordance with paragraph (2)(A).

`(B) EXCEPTION- Subparagraph (A) does not apply if, after receiving notice of the claim for infringement and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer–

`(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or

`(ii) fails to render payment of reasonable compensation in a reasonably timely manner.

`(2) REQUIREMENTS FOR SEARCHES-

`(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

`(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether–

`(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

`(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

`(B) INFORMATION TO GUIDE SEARCHES; BEST PRACTICES-

`(i) STATEMENTS OF BEST PRACTICES- The Register of Copyrights shall maintain and make available to the public, including through the Internet, current statements of best practices for conducting and documenting a search under this subsection.

`(ii) CONSIDERATION OF RELEVANT MATERIALS AND STANDARDS- In maintaining the statements of best practices required under clause (i), the Register of Copyrights shall, from time to time, consider materials and standards that may be relevant to the requirements for a qualifying search under subparagraph (A).

`(3) NOTICE OF USE ARCHIVE- The Register of Copyrights shall create and maintain an archive to retain the Notice of Use filings under paragraph (1)(A)(i)(III). Such filings shall include–

`(A) the type of work being used, as listed in section 102(a) of this title;

`(B) a description of the work;

`(C) a summary of the search conducted under paragraph (1)(A)(i)(I);

`(D) the owner, author, recognized title, and other available identifying element of the work, to the extent the infringer knows such information with a reasonable degree of certainty;

`(E) a certification that the infringer performed a qualifying search in good faith under this subsection to locate the owner of the infringed copyright; and

`(F) the name of the infringer and how the work will be used.

Notices of Use filings retained under the control of the Copyright Office shall be furnished only under the conditions specified by regulations of the Copyright Office.

`(4) PENALTY FOR FAILURE TO COMPLY- If an infringer fails to comply with any requirement under this subsection, the infringer is subject to all the remedies provided in section 502 through 505, subject to section 412.

`(c) Limitations on Remedies- The limitations on remedies in a civil action for infringement of a copyright to which this section applies are the following:

`(1) MONETARY RELIEF-

`(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

`(B) FURTHER LIMITATIONS- An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that–

`(i) the infringement was performed without any purpose of direct or indirect commercial advantage,

`(ii) the infringement was primarily educational, religious, or charitable in nature, and

`(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement,

except that if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.

`(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION- If a work is registered, the court may, in determining reasonable compensation under this paragraph, take into account the value, if any, added to the work by reason of such registration.

`(2) INJUNCTIVE RELIEF-

`(A) GENERAL RULE- Subject to subparagraph (B), the court may impose injunctive relief to prevent or restrain any infringement alleged in the civil action.

`(B) EXCEPTION- In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–

`(i) may not restrain the infringer’s continued preparation or use of that new work;

`(ii) shall require that the infringer pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work; and

`(iii) shall require that the infringer provide attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if requested by such owner.

`(C) LIMITATIONS- The limitations on injunctive relief under subparagraphs (A) and (B) shall not be available to an infringer if the infringer asserts in the civil action that neither the infringer or any representative of the infringer acting in an official capacity is subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106, unless the court finds that the infringer–

`(i) has complied with the requirements of subsection (b); and

`(ii) has made an enforceable promise to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright.

`(D) RULE OF CONSTRUCTION- Nothing in subparagraph (C) shall be construed to authorize or require, and no action taken under such subparagraph shall be deemed to constitute, either an award of damages by the court against the infringer or an authorization to sue a State.

`(E) RIGHTS AND PRIVILEGES NOT WAIVED- No action taken by an infringer under subparagraph (C) shall be deemed to waive any right or privilege that, as a matter of law, protects the infringer from being subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106.

`(d) Exclusion for Fixations in or on Useful Articles- The limitations on monetary and injunctive relief under this section shall not be available to an infringer for infringements resulting from fixation of a work in or on a useful article that is offered for sale or other distribution to the public.

`(e) Preservation of Other Rights, Limitations, and Defenses- This section does not affect any right, limitation, or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the infringement contemplated by the infringer if the owner of the infringed copyright cannot be located, that provision applies instead of this section.

`(f) Copyright for Derivative Works and Compilations- Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.’.

(b) Technical and Conforming Amendment- The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

`514. Limitation on remedies in cases involving orphan works.’.

SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

(a) Establishment of Database-

(1) IN GENERAL- The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

(2) PROCESS AND STANDARDS FOR CERTIFICATION- The process and standards for certification of the electronic database required under paragraph (1) shall be established by the Register of Copyrights, except that certification may not be granted if the electronic database does not contain–

(A) the name of all authors of the work, and contact information for any author if the information is readily available;

(B) the name of the copyright owner if different from the author, and contact information of the copyright owner;

(C) the title of the copyrighted work, if such work has a title;

(D) with respect to a copyrighted work that includes a visual image, a visual image of the work, or, if such a visual image is not available, a description sufficient to identify the work;

(E) one or more mechanisms that allow for the search and identification of a work by both text and image; and

(F) security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database.

(b) Public Availability- The Register of Copyrights–

(1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and

(2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.

SEC. 4. EFFECTIVE DATE.

(a) In General- With respect to works other than pictorial, graphic, and sculptural works, the amendments made by section 2 shall apply to infringements that commence on or after January 1, 2009.

(b) Pictorial, Graphic, and Sculptural Works- With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall–

(1) take effect on the earlier of–

(A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or

(B) January 1, 2013; and

(2) apply to infringing uses that commence on or after that effective date.

(c) Publication in Federal Register- The Register of Copyrights shall publish the effective date described in subsection (b)(1) in the Federal Register, together with a notice that the amendments made by section 2 take effect on that date with respect to pictorial, graphic, and sculptural works.

(d) Definition- In this section, the term `pictorial, graphic, and sculptural works’ has the meaning given that term in section 101 of title 17, United States Code.

SEC. 5. REPORT TO CONGRESS.

Not later than December 12, 2014, the Register of Copyrights shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the implementation and effects of the amendments made by section 2, including any recommendations for legislative changes that the Register considers appropriate.

SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

(a) In General- The Register of Copyrights shall conduct a study with respect to remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief, including consideration of alternative means of resolving disputes currently heard in the United States district courts.

There Are 46 Comments On This Article.

  1. Can someone explain this whole deal in one paragraph…to someone with a jr high school education.

  2. Anonymous

    From one anon to another –

    Yes, essentially, kiss your rights as a photographer goodbye and be prepared to have your work stolen and used by others without your permission or compensation to you, if someone does a search and can’t find you.

    oh, and if you’ve already registered, you’ll likely need to re-submit EVERYTHING to the new archive so it can be a part of the archive you search for owners. You and the 5 million other images that Google will submit, and the auto-inquiries that Flickr will run through the archive so that they are protected – all in the first week or two.

    If someone uses your photo on a keychain fob, coffee cup or t-shirt, they’re not protected, but if it’s in a big ad or brochure, they can steal to their heart’s content and be protected from you suing them.

    These users of your work will submit to a notice of use archive, if that doesn’t get killed by the Library Association, but you’ll be required to search through it to find your own work. Kind of like walking into a big library and looking for a few books, without knowing which you want (i.e. which were infringed), and so you just spend all day browsing.

    Some bill will pass, someday, but this one really sucks and shouldn’t.

  3. ^thanks…..

    Where is the ‘good’ in this? It must have been created for a good reason, no? (I mean, it sounds evil, but the govt is here to protect and to serve right?)

  4. The congressional bill is called The Shawn Bentley Orphan Works Act of 2008. “Shawn Bentley” was a lobbyist for AOL Time Warner that died of cancer in 2006… According to the link below Mr. Bentley donated $41,000 to Sen. Patrick Leahy (D-VT) one if the sponsors of the bill.

    “Other major contributors include a litigation attorney who defends naughty people who seem to infringe on patents and copyrights, sizable donations also came from Disney, and then there is “TechNet”, an interesting little group of tech moguls, who do a lot of big money lobbying for “causes” that tend to make their members lots of money…. on the record, $81,491 went from Technet to Leahy alone last year”

    ” Then be sure to add the fact that John Doerr sits on the board of Amazon, Google Intuit, and his company is the primary funding behind Zazzle,(sorta like cafepress). Also discovered that donations were also made to these politicians in the name of John Doerr, his wife Ann, and John’s Venture Capital company Kleiner Perkins Caufield & Byers… and under the name of everyone I have tracked so far that sits in power at Technet.”

    If that is where the push is coming from, you know it’s not good for independent artists.

    http://dejablu503.livejournal.com/539956.html
    Another good piece on the Orphan Works Bill can be found on the Animation World Magazine site
    http://mag.awn.com/index.php?ltype=pageone&article_no=3631

  5. If ever there was a time that we needed somebody somewhere to invent the self destructing JPEG file, this is it.

    Where’s Ethan hunt when you need him huh?

    @#3

    Basically…….

    Anyone can stumble across your image and if (as is the norm) some dunderhead designer had stripped the meta out they can “use” your work because they can’t find out who it belongs to. Or they might have found it on a website where someone had stolen it from you without your knowledge. So they use that.

    If they get caught (i.e. you find out they’re using it and challenge them) then they’ll only have to pay what they would have done *had they been able to find you and buy a license before publication*.

    …and other worse stuff which is not at all in our favour.

    Time to buy shares in PicScout methinks….

  6. Congress working hard on this garbage and making sure sirius/xm does not happen. You know, VERY important things.

  7. Debra Weiss

    @6 So this is not be passed yet right? there is no way this would pass.”

    No it has not passed yet, but most likely will.

    @7 “The congressional bill is called The Shawn Bentley Orphan Works Act of 2008.”

    Actually, the above is the Senate bill. The Congressional Bill is HR 5889. Did you do anything to substantiate the information that you posted here, or did you just copy and paste from something on the internet. AOL Time Warner gives money to practically everyone, and while the information in may be correct, the possibility that it is not also exists.

    @ “oh, and if you’ve already registered, you’ll likely need to re-submit EVERYTHING”

    Not likely – you will have to. This bill, should it pass will be creatively and
    financially devastating to many.

    H.R. 5889 The Orphan Works Act of 2008 is already on its way to the House. Markup of S 2913 The Shawn Bentley Orphan Works Act of 2008 has been put off until Thursday, so you have time to write your senators and congressmen. Please visit http://capwiz.com/illustratorspartnership/home/ and scroll down until you see “For Photogaphers”. Real letters and faxes are more effective than e-mail. Keep sending letters. Those at capwiz are very well written. You will not have to do anything except print it out and put it in a fax machine. If that’s too much work, all you will have to do is type your name and send an e-mail.

    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).

    To contact your Congressman visit https://forms.house.gov/wyr/welcome.shtml

    To contact your Senators visit
    http://www.senate.gov/general/contact_information/senators_cfm.cfm

    For family, friends and anyone else, please forward this link
    http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11333001

    This is a letter for the general picture taking public. The general public is at even greater risk as there is almost no knowledge of copyright. Is every grandmother going to register every picture of their grandaughter that they are sharing on a family site? Yet, there are some great amateur photos out there and I could come up with some pretty horrible scenarios as to what can happen.

    This is not fear mongering. These are bad bills that should never have gotten as far as they have and will have a huge impact on your futures.

    Please take action. This is an election year and you have more power than you think.

  8. What I don’t understand is how these idiots in Washington DC expect people to actually find the photographer by searching a database. They’ve clearly not spent any time searching Corbis or Getty for images. It takes hours and hours to comb through those edited databases. I can’t imagine the size of the one they aim to create. If you have a picture of a man walking down the street what are the chances that you would locate the photographer by typing in those keywords. Nearly zero.

  9. Thanks Debra – that’s a huge help.

    @5 Yes, this bill is an attempt to solve a real problem but it does so with far too much disregard to individual artists. If you grit your teeth and dig into the mountain of information out there, you can find good discussions.

    I have listened to many – however, the whole time I’m listening I rarely hear a voice on any panel that is on the side of folks like me (we the Davids) who do not have the financial where with all (time and legal clout) to properly protect the quantity of work we produce or fight the legal fight when we are abused by Goliath. *Sigh*

    Time to fire up the fax machine again.

  10. Johann Gutenberg

    I wonder where Adobe stands on this issue. I just wonder if there is a way to embed copyright notations within the actual code of the scanned digital photograph? In other words, you know those weird corrupted email attachments that you get in the body of emails, where the actual code of the photographic digitized image shows, instead of the actual photograph? You know the ones — line after line after line of continuous code; it usually shows up in Spam. I just wonder if there is a way to embed your copyright information right into that code, but somehow, add an “invisible” command/tag to the copyright information, so that it wasn’t visible to the viewer, but it was searchable in a database. So that, the copyright info shows up in almost every line of code, so that, no matter how crazy someone cropped the image, somewhere, some way, at least one reference to your copyright info would still be visible, and thus “trackable” over the web. If anyone could address this, surely Adobe could.

    I know there is the “File Info” feature inside of Photoshop, but I’m talking about something much more powerful than that — something that could survive, no matter the crop, embedded way down into the code level.

    All of this is way over my head, but I was just dreaming of a technological solution to this law, given the fact that it seems destined to pass.

    If this thing does pass, I predict all-out war, once the rights grab begins.

  11. Debra Weiss

    @ 15 “Does anyone have an easy explanation to why ASMP supports the House bill?”

    In exchange for certain concessions, ASMP agreed to publicly endorse this legislation. Other than the omission of the use of orphan images on “useful articles” (keychains, coffee mugs, etc), which is not significant – its pretty much meaningless unless you are a retail photographer.

    According to ASMP, their justification for this endorsement is based on the belief that if they didn’t endorse this bill, the next would be worse.

    I too am of the opinion that modification of the Fair Use statute would be a better way to go. I also think that Senators and Congressman really don’t understand the creative process and what goes in to creating a photograph. Digital technology has made everyone believe that all they have to do is go out and buy a digital camera and POOF – that’s all there is to creating an image. They are not cognizant of the time, money, logistics, heart and soul that many put into their work. I have worked on book projects with photographers who have put fifty to one hundred thousand dollars of their own money into the project. If this bill passes, it will have both a huge financial and creative impact on all photographers.

  12. Honestly Debra – I propose that we take up a collection to get YOU in front of Congress. They wouldn’t know what hit them:)

    ASMP sounded so wimpy on this issue I could hardly believe it. That was the reason for my question. My opinion is that if you give an inch they’ll take a mile. WHY would anyone believe that if we let this one pass the next one will be better????

    I completely agree: make the corrections in fair use. This blanket easing of rights is trouble. I also agree that most don’t understand. I’ve read many tech blogs who advocate giving away all rights; kind of like open source photos. They are very confused.

  13. It’s funny. I tossed the link out to some people on forums and I was met with full on aggression and flaming for being “greedy”. The fact that a lot of photographers and illustrators really don’t understand the aspects of business in their craft is plainly obvious when there is backlash against another photographer who is just trying to get them to stand up for their rights. They told me that I should just be happy with what I’m paid for a given job and call it a day. Give the copyright away to the client, basically.

  14. matthew pace

    Ok…don’t shoot me here, i am not in favor either but this is what I understand…

    Your work as all work is copyrighted no matter what.There is no change to that. It is however not registered until you do so and doing that helps to give an attorney his fee along with your images on file in Congress. You do not have to refile anything, although I am sure some form of registry will appear to help matters along.

    Professionals are not in threat if they do what professionals should be doing, Metadata..filing copyright..

    What the OW is saying is that if someone uses an image that after he has gone through all the preliminary procedures needed in a search, and is found by the creator, that person is exempt up to that point of copyright breach. HOWEVER..he must negotiate a ” fair and just compensation” to the creator. If not, he is in violation from that point on.

    So,here you find,because you forgot to do homework, your image in an ad,maybe nabbed from the web your forgot existed, being used in a regional usage. You call to inform the user and negotiate usage accordingly to the current average rate. supported by OW. He either agrees and you get paid or from that point on he faces as many breaches as he uses. It is a little different from the law now where he would automatically be in breach and charged. In a way you could collect more money and maybe make a client once he knows who you are.

    Debra is right on grandma.She is f&*(*&*k…however don’t forget that she too has copyright, whether or not she knows that…. which could give rise to a new genre of attorneys… ” Have you lost your image,let Cowwan & Cowannn put a smile on your face”

    or an agency by anyone that could say ” Fear of Creation? Adopt an orphan” …better than RF.

    The problem with most of us is not ASMP. Put down your stones. How many photographers are out there comfy in their dream of being “Independent Artists” who never join anything past a “club” for whatever dumb ass reasons they have. Numbers mean something especially to Capitol Hill. Our numbers are minute because we are an un-organized profession. If all photographers HAD to belong to one of the organizations and they fell under one umbrella we would be a million strong with one voice.

    Next time there is a call to some meeting, ASMP.APA,PPA,LSMFT or whatever, don’t sit on your ass, get up pick up your shield and join the force, stones from your kitchen window do nothing.

    now don’t stone me, I already am

    matthew pace

    PS…I would love to hear what Annie,Watson,Platon,McCurry,etc have to say.

  15. Debra Weiss

    Sorry all . Ignore @ 21 – Am not sure what happened. Here is how it should read:

    Numbers mean something especially to Capitol Hill. Our numbers are minute because we are an un-organized profession. If all photographers HAD to belong to one of the organizations and they fell under one umbrella we would be a million strong with one voice. @20 -
    Matthew Pace wrote:

    “Professionals are not in threat if they do what professionals should be doing, Metadata..filing copyright..”

    Matthew – this is a nice fantasy you’re relating in your entire post. Understandable in your position as ASMP South Florida Chapter President.

    In addition to registering works with the Copyright Office, in which one will only be able to search by text, they will also have to register at the private registries that will be established. This will create a massive financial hardship on most photographers.

    The current legislation which ASMP is supporting 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.

    Matthew Pace wrote:
    “So, here you find, because you forgot to do homework, your image in an ad, maybe nabbed from the web your forgot existed, being used in a regional usage. You call to inform the user and negotiate usage accordingly to the current average rate. supported by OW. He either agrees and you get paid or from that point on he faces as many breaches as he uses. It is a little different from the law now where he would automatically be in breach and charged. In a way you could collect more money and maybe make a client once he knows who you are.

    Regional? What about nationally? Or internationally? Negotiate to the current rate? That rate depends upon where and how the image is being used, who the photographer is, how unique the image is, the complexity of producing the image. Sadly because of all that’s gone on in this industry in the past 25 years with the devaluation of imagery due to royalty free and now microstock, one could successfully argue
    that the current rate is whatever someone wants to pay.

    The truth, Matthew, is that even if a photographer registers their images with the copyright office, according to this legislation, should their work be infringed upon, the financial remedies will be severely limited. If “reasonable compensation” cannot be agreed upon, the burden is placed on the photographer and he/she will have to file a lawsuit. If an Orphan Works defense has been determined, the photographer will not have the benefit of statutory fees.

    Matthew Pace wrote:

    “It is a little different from the law now where he would automatically be in breach and charged. In a way you could collect more money and maybe make a client once he knows who you are.”

    It’s a lot different from the law now – and that’s just what I would want – a client who finds it acceptable to steal.

    Matthew Pace wrote:

    “Debra is right on grandma.She is f&*(*&*k…however don’t forget that she too has copyright, whether or not she knows that…. which could give rise to a new genre of attorneys… ” Have you lost your image, let Cowwan & Cowannn put a smile on your face”

    Well, most DON’T KNOW IT and most grandmothers in this country are trying to figure out how they will be able to pay their utility bills. The idea that people might be put in a situation where they would need to hire attorneys because of of a family photo sharing site is beyond repugnant.

    Matthew Pace wrote:

    “The problem with most of us is not ASMP. – Numbers mean something especially to Capitol Hill. Our numbers are minute because we are an un-organized profession. If all photographers HAD to belong to one of the organizations and they fell under one umbrella we would be a million strong with one voice.

    No, but this legislation is. And your million strong figure is overblown. Matthew – this is still America regardless of who is in the White House. Photographers don’t have to belong to anything. If by being under one umbrella, they will get them the rights protection that’s been achieved with this legislation, well…

    Here’s some history about numbers – When Congress mandated that the Copyright Office should do a report on OW, they called for comments. They got thousands upon thousands of letters from everyone in favor of OW – not just organizations, but from individuals affiliated with whatever organizations those might be. And from the photography community – a small stack of letters from the organizations who were writing on behalf of their membership. What do you think Congress sees and thinks when presented with this?

    One thing is for sure – the Founding Fathers are making a lot of noise down there with all the turning in their graves that’s going on.

    So I shall reiterate what I have said previously – BURY them with faxes and letters. Contact numbers for the Senate and Congress are in previous posts.

    Matthew – you know me and I sincerely hope you realize this is not personal.

  16. Jack Reznicki

    @ 20 matthew pace wrote:
    What the OW is saying is that if someone uses an image that after he has gone through all the preliminary procedures needed in a search, and is found by the creator, that person is exempt up to that point of copyright breach. HOWEVER..he must negotiate a ” fair and just compensation” to the creator. If not, he is in violation from that point

    The problem with most of us is not ASMP. Put down your stones. How many photographers are out there comfy in their dream of being “Independent Artists” who never join anything past a “club” for whatever dumb ass reasons they have. Numbers mean something especially to Capitol Hill. Our numbers are minute because we are an un-organized profession. If all photographers HAD to belong to one of the organizations and they fell under one umbrella we would be a million strong with one voice.
    Next time there is a call to some meeting, ASMP.APA,PPA,LSMFT or whatever, don’t sit on your ass, get up pick up your shield and join the force, stones from your kitchen window do nothing.
    —————-

    Matthew,

    Goodness. Finally someone read the bill and understands it. And understands it beyond this myopic issue. Thank you.

    You are 1000% correct about photographers banding together. Always been a dream of mine. We even had talks years between 2 associations about it until egos got involved. Such is life and we move on.

    Yes, the big names aren’t as worried because once you read the bills, you realize that a well prepared or a well-known photographer can easily invalidate an OW defense. Someone like Annie L. or Steve McCurry are so well know that no one can claim their work as Orphan, because it’s to easy to find them and their work. If you can prove that you can easily be found and that the infringer didn’t fulfill the “diligent search” you can invalidate an OW defense.

    And if the infringer tries to undercut the industry standard prices for similar usage, or even drag their feet in negotiating or payment, then OW becomes invalid. THAT was some of the concessions fought for, not coffee mugs.

    I also cringe when I hear someone, anyone, imply that any of the associations have “sold out” or compromised for “concessions” when it implies for individual gain, rather than an industry gain.
    But much more important, false implications like that, will drive a wedge and cause bad feelings between associations that, in the long run, will hurt photographers much, much more than this bill ever will.
    It keeps us divided and weak.

    Once again in our industry history, we’re losing the forest for the trees.

    APA was formed because a group of ASMP commercial photographers were trying to establish a uniform estimating and billing form. That is the whole reason APA was formed. Period.
    Not only could we not get the agencies to adopt it, which would have forced photographers to use it, we couldn’t get photographers themselves to adopt it.
    As I said in another thread here, ala Pogo, we are our own enemy in that respect.

    So commercial photographers don’t have a uniform estimating/billing form. We can’t get any photographers to use proper paper work, register their images, or even have basic proper licensing language.
    I don’t even want to guess how many don’t imbed metadata into their files.
    And worse of all, by far, way too few artists protect themselves with registration.
    Do the right things and OW is not the evil bill it’s being touted as. Ignore all the proper things you should be doing and OW isn’t the final nail, it’s just another nail.

    And in that regard- Kudos to Debra Wiess and Jeff Sedlik, and anyone else who have worked on PLUS to try and standardize language.

    Again, I’d prefer not to have it (OW) at all. And yes, a change in Fair Use would be better for us.
    But that and 6 winning Lotto numbers ain’t gonna happen, so I better be ready with another plan.

    And apologies to those who think my posts are to long. Again, one of the problems we face is that photographers generally don’t read. ;->
    That includes camera instruction manuals along with legislation.

    I’m done in the other thread and this will end me in this one.

  17. Jack Reznicki

    OK, one more because it posted as I posted my last one

    Debra you wrote – “One thing is for sure – the Founding Fathers are making a lot of noise down there with all the turning in their graves that’s going on.”

    I really wish I could agree with you on this, but its far from true. “God” as often touted by countries at war, is not on our side. (That a metaphor here, I know you never implied God).

    If you read Article 1 in the Constitution where we get our copyright law, copyright protection was written not to protect us primarily, but rather to further public knowledge, to spread information.
    As it is quoted in the Constitution- “to promote the progress of Science and Useful Arts”.
    And registration as Jeff Sedlik so well puts, is not to protect our works, but is there to basically feed the Library of Congress.

    Here’s a quote from Justice Sandra Day O’Conner when she sat on the Supreme Court.
    “The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and Useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.
    This result is neither unfair nor unfortunate.
    It is the means by which copyright advances the progress of science and art.”

    Congressman Boucher from Va., who is next in line for the Judiciary Committee chair, from what I know in my “crystal ball” as you called it,
    is quoted as saying about the DMCA-
    “This disappointing decision has moved our Nation one step closer to a “pay-per-use” society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers.”

    Yeah, “narrow interests” of us copyright holders. Like eating and making a living.

    Defending our copyrights is an uphill battle and will continue to be so in the future. The founding fathers are not “turning in their graves” over this by any means.

    For every fax you send, be aware that there are bigger, better organized groups like the librarians and publishers that are also gathering their troops and sending in letters and faxes in support of OW.

    That’s why I keep saying, if we divide over this, we will be hurt more in the long run.
    And it will be a long run.

  18. matthew pace

    Debra,

    I do know you and always enjoy your thoughts and our conversations. I know this isn’t personal its business.

    For the record: While I am President of S.FL ASMP…I am not speaking for or as ASMP…let’s be real clear there.

    I personally do not agree and I believe that a lot of ASMP feels the same about OW. What is being said is that so far this is the best deal to take that is on the current table, not we love it. My understanding is that there are 2 proposals and this is the least of both evils.

    This is where numbers count. Look at Move On…email blasts to the nation that seems to make the Capitol take real notice. You more than anyone know that this profession has little control over itself because most can’t come together or bother to. As photographers we are solo flyers, good in some aspects real bad in others like this one.

    No one is sure of how searching for the creator will take place that is why it is imperative to do your homework and also place a demand on software to make some kind of un-strippable info or as another post suggests, a time bomb on your images that self destruct either after intial usage or time factor. Also, I think that when a user registers he as well has to show the image. That is where un-strippable info is needed.

    As for grandma, God love her, she does have the same recourse and rights that are not being threatened, but even today without OW, she would still have to hire an attorney to re-cooperate the breach on her copyright. The difference lies with…without copyright registration, an attorney can not recoup his fee from the infringer…you have to pony up, hoping you win whatever the judge decides is fair. So if he says $1500 and your attorney says $800 ( a laugh) you got $700..(with no prior registration) with it, she would get the $1500 and the attorney whatever he charges on top of that. That is not going to change.

    Debra wrote:
    “The truth, Matthew, is that even if a photographer registers their images with the copyright office, according to this legislation, should their work be infringed upon, the financial remedies will be severely limited. If “reasonable compensation” cannot be agreed upon, the burden is placed on the photographer and he/she will have to file a lawsuit. If an Orphan Works defense has been determined, the photographer will not have the benefit of statutory fees.”

    The financial remedies as I understand it, are limited in the sense that an infringement,where no creator is found, where a search is on record, does not constitute a willful copyright breach, unless a “reasonable and fair compensation” can be made. You mention the reference of RF as a measuring tool..perhaps for some image from some random one who got something out there…maybe arguable..but from an established photographer who has a track record,makes his living, doesn’t contribute to RF to start with? He might be seen from a different perspective.

    These are just my thoughts and I apologize to Rob here for taking up so much of his Blog space. This is a hot confusing issue.

    thank you Rob for your time
    and Debra for good comments.. (who for those who don’t know, has defended the rights of photographers for a long time)

    matthew pace
    just a photographer (still your friend)

  19. Debra Weiss

    @23 “Goodness. Finally someone read the bill and understands it. And understands it beyond this myopic issue. Thank you.”

    Gee – from one former PPA President to a present ASMP Chapter President. I’m starting to feel all warm and fuzzy, Jack.

    “And if the infringer tries to undercut the industry standard prices for similar usage, or even drag their feet in negotiating or payment, then OW becomes invalid. THAT was some of the concessions fought for, not coffee mugs.”

    There are no industry standard prices and this is good thing. The bad thing, as I pointed out in my previous post, that as a result of all that has taken place in this industry – royalty free, microstock, buyouts, etc., the infringer could argue that the standard price is anything anyone wants it to be.

    “I also cringe when I hear someone, anyone, imply that any of the “associations have “sold out” or compromised for “concessions” when it implies for individual gain, rather than an industry gain.”

    No one has said this and please stop trying to convince photographers that the concessions made are good for them. They’re not.

    “But much more important, false implications like that, will drive a wedge and cause bad feelings between associations that, in the long run, will hurt photographers much, much more than this bill ever will.
    It keeps us divided and weak.”

    Again, Jack, there were no false implications. And no amount of bad feelings between the organizations has the potential to hurt photographers as much as this legislation.

    “APA was formed because a group of ASMP commercial photographers were trying to establish a uniform estimating and billing form. That is the whole reason APA was formed. Period.”

    This is grossly narrow and simplistic. APA was formed due to dissatisfied studio photographers (like Bill Stettner, David Langley, et al) who were not being well represented by ASMP – as they were an organization that was originally set up to represent magazine photographers. They were not dealing with the advancing challenges of what the studio photographer’s business model needed to be. Copyright issues also played a hand in APA’s formation. And while much has changed since that occurrence, ASMP, still, is not representing the commercial photographer as they should be. Besides, Jack. This was about 26 years ago. We live in another century now.

    “Do the right things and OW is not the evil bill it’s being touted as. Ignore all the proper things you should be doing and OW isn’t the final nail, it’s just another nail. ”

    There shouldn’t be another nail unless you and every other photographer are using it along with your tooth to fight this.

    “Again, I’d prefer not to have it (OW) at all. And yes, a change in Fair Use would be better for us.”

    Yes it would and this is what should have been fought for all along.

  20. Jack Reznicki

    Sigh, in once again-
    Just when I thought I was out….they pull me back in

    Debra wrote-
    “This is grossly narrow and simplistic. APA was formed due to dissatisfied studio photographers (like Bill Stettner, David Langley, et al) ”

    Sorry, as one of the “et al” in the early days, with the late Bill Stettner, David Langley (who I recently saw teaching up at Hallmark), Larry Robins, and Steve Steigman, that is NOT grossly narrow and simplistic.

    That , my dear, was the main reason and the driving force of the formation of APA. I was there as a board member in those early days, and if I recall, you weren’t.
    So please don’t tell me it’s a grossly simple and narrow view. I put in too much time over those issues and know that my take is a bit more accurate.

    There are many things you wrote as “facts” that I take issue with, but in all due respect (and I do mean with respect), it’s best to let those dogs lie. A lot is a difference of opinion.

    We don’t see eye to eye and don’t agree with what this legislation means. But I do sincerely hope that my offer for dialog over a drink still stands and that we can find common ground in future battles to stand together on.

  21. Debra Weiss

    @24 “If you read Article 1 in the Constitution where we get our copyright law, copyright protection was written not to protect us primarily, but rather to further public knowledge, to spread information.”

    Jack,

    Am very aware of Article 1. This legislation has the potential to be financially, creatively, and morally devastating. It should never have gotten this far.

  22. Debra Weiss

    @27 – Jack, I stand by everything I said. If you believe my facts, are not in fact, facts, please address them.

  23. Debra Weiss

    @27 “We don’t see eye to eye and don’t agree with what this legislation means. But I do sincerely hope that my offer for dialog over a drink still stands and that we can find common ground in future battles to stand together on.”

    Absolutely.

  24. matthew pace

    Debra…wrote

    (Gee – from one former PPA President to a present ASMP Chapter President. I’m starting to feel all warm and fuzzy, Jack.)

    Ok…group hug…

    Listen, I don’t see where either one of us is speaking as or for either organization any more than saying “we are guys what so what do you expect?” Obviously we have more knowledge than most because we hear more and see more than most only due to our involvement and are basing our individual judgments as professionals on that.

    My opinions would remain the same even if I were the janitor.

    matthew pace

    PS I like wine..Oct.PDN show

  25. Debra Weiss

    @31 – “My opinions would remain the same even if I were the janitor.”

    Matthew,

    If you were the janitor, you wouldn’t have to worry about this bill.

    Red or white?

  26. I still don’t understand how I’m supposed to track down the author of a picture I want to use. Search a database using keywords describing the things I can identify in the picture (does this mean all registered works need extensive keywording) then add additional stylistic keywords to root out famous photographers that I may have never heard of. The results will be in the millions. And after sifting through all the results and not finding an exact match I’m free to use the image and only have to pay reasonable compensation based on how much money the image makes me if the author eventually surfaces.

    Does this seem like a good solution for either side. Are librarians and documentary filmmakers really going to bother with this or pay someone to do the searching for them?

  27. Debra Weiss

    @33 – All very good questions and I don’t think anyone has the answers. I imagine you will be able to search the private registries by image and what an appealing thought that will be. Even with extensive keywording, who has the time? And imagine the potential cost to the photographer who will have to register his work not only with the copyright office, but these private registries.

    I don’t think there was a good deal of foresight being utilized in these negotiations. As I’ve said about a million times already – this is a bad bill.

    Jack and Matthew – if you’re out there and I know you are – all the lipstick in the world is not going to make this pig marriage material!

  28. matthew pace

    Debra,

    White by day red by night…

    Rob,

    That is a golden question…one that yet remains to be tried…but so far I think one has to submit the image to the Copyright office as well as all the info etc. This is why we all need to do our homework in the digital world. Older prints well… How in real life this will work…There still may be some things to iron out an no doubt some changes will come down the pike. Artists, because we are not the only ones at stake here need to organize under some umbrella, but need to know that you have to give to get in any deal no matter where or whom its with.

    This whole thing started with libraries and museums that have access to many older images in print that needed to be used in a collection for the general public in some form, family photos that make up our history and need to be passed down. We could argue that well they are not a commercial venture and they are doing the public a justice…perhaps, unless they charge a fee for entrance to see that collection then the very thin line appears that ruffles the feathers of those who are quick to jump to the copyright law. OW is meant to protect that and say,”fair compensation ” if all ends are adhered to.

    Let’s see what is fair? Your grandparents (God forbid) was part of a town slaughtered because they stood for what they believed in. They are part of a story that needs to be told and mostly remembered. How much for the image? If you saw it on a banner stretching across the MET with ” See it happening this Sunday”..$20 tickets on sale, what would you say? If it sat sadly with many others in an exhibit in permanence saying ” remember us and why” open to the public…how much? What if you never knew that image existed because it was found elsewhere but you recognized them and the person who took it is long gone,unknown? Would you want it shown?

    I am not plugging my blog, but in a post I have on responsibility of photography, I show some images..not mine but of my mother to make a point. These images would be lost dying in my albums instead of being shared ( something the web professes). Now grant you that I am not using them to to sell Ovaltine..this is strictly a personal use to share some information, much like a library. I did some research with nothing found. Could some else take advantage? maybe but how about the model release? OW doesn’t cover that one.

    Yes there will be those who will take the next step and like in all truistic areas, rip someone off..its the way it is. Like hurricanes that we can’t stop but take great measures to warn and protect us,so should we push for some form of program, a method of non destructive or altered metadata.

    But lets get back to your question with another one..

    Would you as an editor stop hiring photographers in lieu of wading through all the sludge hoping to find some lost image or two that would bring your story/layout/ideas together? month after month? Saving page rates, chancing your reputation,dulling down your own creativity? I doubt it.

    Again,I am not personally in favor of OW, but understand the origin of it in its altruistic intention. How will it work is a good question, trying to stop it as worded today and risking the re-definition of Copyright Law tomorrow might be very chancy, covering your ass and pushing others is one solution.

    thanks for allowing us this space
    these are only MY OWN opinions

    matthew pace

  29. I have a few high hopes right now.
    1.) That thousands of photo students (in addition to everyone else) are following this issue and getting active, submitting their opposition faxes or emails and spreading word on this like their lives depend on it.
    2.) That several high profile photographers and their advocates, those who Capitol Hill is already familiar with, would get vocal and campaign against OW…doing press conferences, interviews on CNN, Dateline, 60 Minutes, John Stossel’s Give Me a Break, Frontline Reports, etc.

    Is this pure fantasy? Would the mainstream media care? Or would the mainstream media have an invested interest in not giving voice to those opposing OW?

  30. Companies like PicScout (www.picscout.com) and Idee (TinEye) (www.ideeinc.com) and others who are developing or have developed visual search engines, will be growing quickly as a result of this legislation. Visual searches make so much more sense than text searches for visual content. As with current keywording issues, who will search for, or embed, the “correct” keyword(s) to identify a given image, if keywords are even embedded? How will a given image be recognized by a textual description (i.e. a man wearing a hat standing on the beach) by the creator, the copyright office, a third-party verifier? Is that description adequate or detailed enough?

    What is “fair compensation”? That term bothers me. Who determines that? I could be in negotiations, with or without the expense of a lawyer, for weeks, months, or years even. In fact, such a thing might never be resolved to anyone’s satisfaction and many photographers will simply have to give up because they don’t have the resources to continue trying to wring blood from a stone. It’s bad enough under the current laws, but then occasionally you run into someone who understands or at least knows about copyright and they can be encouraged to play fair.

    It’s going to be a free-for-all, not just for pro photos but the entire pool of images and artworks from everyone who exists. You think the glut of images loaded into RF and microstock lowered RM prices, just wait until every image ever created those millions every day dumped into Flickr, MySpace, YouTube, etc. is up for grabs.

    I just lost a photo job to a friend of mine who is just starting out. He gave away all rights and underbid me by a significant amount. I’m going to have a chat with him, but this happens all the time in this business.

    It makes a person wonder if they can continue in this profession.

  31. I participated in one of the mass emailings to legislators, and have also separately emailed my legislators with my own points and comments–mainly trying to educate them about the online working environment for photographers, and the current impossibility of preventing copies being stripped of identification. My points have generally all been made above.

    I’ll just add one specific point–I find it odd that the act does not specify that “Notice of Use” filings include a statement of exactly where the work was “found.” Seems like a very basic piece of needed information.

  32. I support this Bill.

    Fair use has been gutted, we can have a private free exchange of information on the internet or we can have copyright laws.

    There is not room for both.

    To sacrifice freedom of speech, privacy and the basic realities of the internet to maintain outdated business models is misguided.

    I reject the philosophy that you have the right to inject something in to the culture then restrict its discussion.

  33. @42:
    Jim, I obviously wouldn’t know for certain. But my guess is that you may make your living from using other people’s photography without compensating them. My other hunch is that you haven’t considered all that goes into maintaining a living from being a professional photographer.

    I see that you’re coming from a creative commons frame of mind, if I’m not mistaken. Although I understand the point behind certain aspects of the creative commons theory (free exchange, all is full of love), ultimately it’s intended for the realm of amateurs. Granted there will always be amateurs and not everyone has the gumption to be a professional photographer, but when people suggest a universal theory which runs professional photographers into the ground, that’s where I need to get up and make a point.

    If someone wants to give it all away because they’re a hobbyist, that’s their right. But it makes little sense for every creative person to be expected to do the same…as long as the realities of rent, mortgage, food, heat, water and electricity costs exist.

    Show me a utopian society and I’ll forget all about fees and copyrights.