http://www.copyright.gov/docs/regstat031308.html

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.

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To sacrifice freedom of speech, privacy and the basic realities of the internet to maintain outdated business models is misguided.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

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.

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.

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?

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

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!

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?

Matthew,

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

Red or white?

(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

Absolutely.

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.

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.

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.

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)

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.

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.

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.

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.

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.

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.