Why You Should Be Worried About Proposed Orphan Works Legislation

We have a huge admiration for photographers. Virtually all of the photographers Black Star has worked with over the years have been talented and skilled; they’ve also been extremely bright. Put aside the camera and head off to a bar with one of our photographers and, in our experience, you’re going to get some fascinating stories and some carefully thought out analyses of the politics of far-off places.

You may also wind up with a sizable bar tab, of course. But we generally believe that it’s worth the investment — and even the next morning’s headache — to hear what a photographer has to say.

Except in the case of a certain “avid photographer” in the U.S. Congress. We’ve heard just about enough out of him.

I’m referring to Sen. Patrick Leahy, who claims he is an “avid photographer” who understands “what it means to devote oneself to creative expression, and … applaud[s] anyone with the talent and commitment to make a living doing so.”

It’s strange, then, that he is one of the sponsors of The Shawn Bentley Orphan Works Act Of 2008, the latest attempt by the federal government to legislate orphan works.

What’s Mine Is Mine … and If I Can’t Find You, What’s Yours Is Mine, Too

The new bill would allow image users to help themselves to photographs (and other creations) whose copyright owners can’t be found. The users will have to show that they carried out a “diligent” search, “in good faith” and “at a time that was reasonably proximate to the commencement of the infringement.” Should a copyright owner then turn up, they would be entitled to receive “reasonable compensation.”

The bill, says Sen. Leahy, would solve the problem of the “hundreds of thousands” of orphan works that are “collecting dust” because potential users are scared of the statutory damages they would have to pay should the copyright owner come forward. Leahy quotes the specific examples of a Vermonter who wanted to restore a family wedding photograph but was unable to find the original photographer to obtain permission; a library that wanted to display letters from World War II; and a museum that wanted to display Depression-era photographs.

It’s hard to see how any of these are serious enough problems to warrant a bill that allows companies to benefit from using someone else’s property, and which puts the onus on the rights-owner to be easily locatable, at the risk of losing control over works he owns. Vermonters (and people from other states) already restore old family photographs. They might be breaching copyright when they do so, but few are likely to be aware of it, and as long as the image is for their own family use — the reason the image was originally taken — the rights owner is unlikely to object.

The situation would be different, of course, if the family photograph was then passed on to a corporation for use in a billboard ad, an option Sen. Leahy’s bill would allow. (And if it were passed on to a church, a temple or a polygamist Utah sect, there wouldn’t even be any compensation: the bill rejects even reasonable compensation if the infringement is non-commercial, including for religious use.)

Heirs Benefit, Artists Don’t

Even the inability to display images from the 1930s isn’t as big an issue as Sen. Leahy suggests. There are already plenty of wonderful photographs available from that period in the public domain, and it’s not as though those currently locked away will never see the light of day. The copyright on all works runs out eventually.

The United States is particularly generous in protecting rights for the lifetime of the artist plus 70 years. That’s a long time to wait and photographers might not want to change it, but it’s more reasonable to debate how much an artist’s heirs should benefit than to argue that living artists should be able to see their works used without permission because companies couldn’t find them. The assumption should remain that private property is private until it falls into the public domain.

There are other problems with the bill, too. In particular, it relies on the user carrying out a diligent search, but doesn’t define exactly what that might be. Getty, for example, is currently using its Web site to look for a large number of photographers to return works it apparently no longer wants. Presumably the company would be free to license — and pocket all of the revenues from — images submitted by photographers it can’t find.

In practice, the bill will encourage large companies will help themselves to orphan works — and make a tidy profit by not paying for copyright-protected images. They’ll continue doing this until a right owner emerges to test the concept of “diligent search” in court. That court case might not be the proposed legislation’s goal, but it inevitably would be one of the effects.

I haven’t seen any of Sen. Leahy’s photographs, but I hope his landscapes are better than his legislation.

[tags]photography law, orphan works[/tags]

2 Responses to “Why You Should Be Worried About Proposed Orphan Works Legislation”

  1. You may find my latest article on the subject interesting: http://danheller.blogspot.com/2008/08/orphan-works-fallout-history-may-lend.html

  2. This is written in 2008.
    What is the status of the US Orphan Bill now? ... summer 2009 ?

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