While much has changed in the legal and business landscape since the last effort to produce a workable Orphan Works Bill, much remains the same. As a result, the U.S. Copyright Office is submitting a request  via the Federal Register for comments on the current state of play for orphan works. Specifically, they want to hear from all parties regarding what has changed in the legal and business environment since their 2006 report. It is critical that photographers understand that the future of photography as a viable revenue stream depends upon you making your voice heard on this matter.
While the various trade organizations will serve to collect voices, and you should participate, you should individually make your voice heard. Comments are due by Jan. 4. Effective now, you can submit comments here . You, as the photographer, are the rights holder. However, this doesn’t extend only to individuals. This also affects corporations that employ photographers.
Several Things to Know and Consider
1. One of the many issues from the last round of orphan works is that there was no mechanism for a rights holder to stop a user once an infringing use was found. Further, rights holders would be compelled to enter into a license with the user. Notwithstanding the fact that this could cause a rights holder to breach a separate exclusivity contract they may have previously entered into, with the current offerings of millions of images via microstock at $1 or less, there needs to be some mechanism for defining “reasonable” fees that a rights holder must accept.
2. There needs to be a neutral, not-for-profit registry that will be the best solution to implement whatever results in a law. By neutral, I mean one that is owned and controlled by its users and not subject to a takeover or buyout by a Google or a stock agency. The best (and only current) example of this is the PLUS Registry , which was started at the behest of the last register of copyrights, Marybeth Peters.
3. There needs to be protections written into the law so that someone doesn’t create a stock photo agency of images for which a “diligent search” has been done and documented, and then these images are sold/licensed, or a “service of convenience” fee for access to these images, is created. If this is not expressly forbidden, it will become a business model where the rights holder not only can’t stop it (and must accept a small fee to permit it) but also could find themselves competing to license their own work against that of an organization set up to aggregate orphan works.
You can’t fight this to make it go away this time. Its probability of passage is far greater this time around, and if your voice isn’t heard it will affect your current and future revenue – guaranteed. Currently, the United Kingdom has a law (better written with better requirements than the past U.S. versions) so know that this ship has sailed.
If the new law is similar to the past ones proposed, here’s what you can expect:
- Any business or person will be able to make use of your photographs for any purpose, forever, without your knowledge or permission, simply by failing to find you
- The infringer may, for example, use your photographs on billboards, brochures, magazine advertising, web sites and in any other media, commercial or editorial
- The infringer may use your photograph to promote political or social causes or extremist views that you find morally objectionable and repugnant
- The infringer may use your photographs in competition with your own attempts to market your photographs
- The infringer may modify your photographs and use them to create new derivative works, then claim copyright ownership of those new works.
If We Don’t Act Now, the Effects are Far-reaching
Of course, with thousands of people and companies making unlicensed, uncontrolled and unknown uses of your photographs, you will be unable grant any of your clients an exclusive license, nor could you reliably assure any client that one of their competitors is not also using your images under an orphan works exemption. You simply will have no idea when or where your images are being used, and as a result, you will forfeit your exclusive rights on the day that the amendment is passed.
If at some point in the future you happen to discover this usage, you will have no legal means by which to stop the infringer from continuing to make use of your photographs – even if you have registered your works with the U.S. Copyright Office. As long as the infringer pays you a fee that the infringer believes and agrees is reasonable, the infringer may continue to use your photographs for any purpose indefinitely. You would not be entitled to penalize the infringer by requiring a price that is out of line with the marketplace. Remember that in today’s image licensing marketplace, the vast majority of image licenses are priced at $1 to $5 for nearly unlimited usage.
While there are a growing number of companies offering services purporting to “protect your rights,” and while we are likely to see many for-profit “registries” pop up in the marketplace, virtually all of these companies are using rights protection as a front to attract your attention, in order to sell you other products or services. Remember also that the moment that any of these companies achieves success, it will be acquired by one of the large stock agencies or media conglomerates, which will then control access to all of your rights information. Of course, any of these companies could fail, wiping out all of our data. We’ve certainly seen that happen before.
Whatever happens, we must prevent any commercial company (Getty, Google, Microsoft, etc.) from gaining control over our rights information. This information and the control over it is the key to the future of our profession, as it will allow automated systems to identify rights holders and distribute fees and royalties when images are used. We must not hand the keys over to any corporation.
For this very reason, long before the first Orphan Works bill, Marybeth Peters proposed that the rights holder groups join forces with groups representing image users and create a non-profit, cooperative system for identifying rights holders, images and rights information. The trade organizations then did just that, forming the PLUS Coalition, creating standards for identifying rights and rights holders, and then developing a non-profit registry system to which any company (for-profit or non-profit) may connect. It is, if you will, a global “hub” for image rights information, owned and controlled by its users – the photographers, illustrators, stock agencies, publishers, design firms, ad agencies, museums, universities and libraries. When completed, a search of the PLUS Registry will search all other registries connected to the PLUS hub, whether those registries are for-profit or non-profit. Importantly, we maintain control over the hub and the information stored within it. While you’re at it, consider becoming a supporting member of PLUS, by making a small contribution to support the continued development of the registry.
Again, you must get involved and make your voice heard. The U.S. Copyright Office cannot give the full picture of needs to the Congress if your voice is absent. They are asking for it, and you would do yourself a grave disservice if your voice were silent. Speak up for yourself, and others.