Opposition to orphan works legislation

by on March 3, 2006 · 9 comments

The American Society of Media Photographers is leading a coalition of organizations opposed to orphan works legislation. I never thought there would be much opposition to legislation that aimed to fix the orphan works problem. “Everybody wins if this is properly fixed,” I thought. In retrospect, it was naive of me to think that there is any issue in this town that doesn’t have at least two sides to it. Concentrated benefits, diffused costs, lesson learned.

It looks like the photographers’ lobby fears that legislation like that proposed by the Copyright Office will allow anyone to use copyrighted works as long as they carry out some perfunctory search. It’s not that simple. Courts will have to be convinced that you couldn’t possibly find the owner before they’ll let you off the hook for infringement. ASMP argues that because photos are often published without attribution, people will be able to claim that they are orphan works and use them with impunity. But just because Time magazine prints a photo without a credit doesn’t meant that it’s an orphan. Before anyone can use it without permission they would have to exhaust all reasonable ways to find the owner. Contacting Time magazine should be my first step, and that should result in finding an owner in most cases. If it doesn’t they’re still not off the hook, they must take every reasonable step possible.

ASMP states, “The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn’t have a published credit.” It’s not that clear cut, but even if it were, that’s the beauty of some orphan works proposals, including the one I’ve worked on. Without enacting a new notice formality (that would violate the Berne Convention), it creates a very strong incentive for photographers to include notice on their works and demand that publishers do so as well. Instead of trying to block salutary legislation, photographers should use their lobby to pressure publishers to always give them attribution, which would make everybody’s life easier.

  • Bridget Dooling

    To some extent, I can understand the concerns of artists about a legislative solution to the orphan works problem. It means that they will have to be more vigilant to protect their property rights. However, I think their concerns must be fit into the constitutional context of copyright law. The debate about trade-offs between (1) giving creators sufficient protection to encourage them to create and (2) developing a rich public domain is not new.

    The Supreme Court has made clear in at least 74 years of jurisprudence that the reward of temporary monopoly rights to creators is a secondary concern of the Copyright Clause of the U.S. Constitution. First comes the public good. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“[T]he primary object in conferring the [copyright] monopoly lie[s] in the general benefits derived by the public from the labors of authors.”); United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (“The copyright law . . . makes reward to the owner a secondary consideration.”); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“The immediate aim of our copyright law is to secure a fair return for an Ã?¢â?¬Ã??author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (“The primary objective of copyright is not to reward the labor of authors but Ã?¢â?¬Ã??to promote the Progress of Science and the useful Arts.’”); Fogerty v. Fantasy Inc., 510 U.S. 517, 524 (1994) (“The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.”).

    So, when it comes to picking a winner between the public good–solving the orphan works problem counts in that column–and creators’ rights, we already know which way Congress and the Courts have to go according to the Constitution: public good!

    With this in mind, Jerry and I argued that the orphan works problem is evidence that copyright law protects creators’ rights too strongly right now, because too many works go uncopied and unrestored for fear of infringement litigation. In many instances, these fears are unfounded because the works are either in the public domain already or their owners would have consented to their use if they could have been found.

    That said, the bar for a reasonable search has to be high enough that it’s not a sham. Courts are good at sniffing those out. So, although I can understand the creators’ concerns, it is still an acceptable solution to require people to do a reasonable search in good faith and then give them some legal cover for their efforts. Right now copyright law doesn’t do that, but it should.

  • Bridget Dooling

    To some extent, I can understand the concerns of artists about a legislative solution to the orphan works problem. It means that they will have to be more vigilant to protect their property rights. However, I think their concerns must be fit into the constitutional context of copyright law. The debate about trade-offs between (1) giving creators sufficient protection to encourage them to create and (2) developing a rich public domain is not new.

    The Supreme Court has made clear in at least 74 years of jurisprudence that the reward of temporary monopoly rights to creators is a secondary concern of the Copyright Clause of the U.S. Constitution. First comes the public good. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“[T]he primary object in conferring the [copyright] monopoly lie[s] in the general benefits derived by the public from the labors of authors.”); United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (“The copyright law . . . makes reward to the owner a secondary consideration.”); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“The immediate aim of our copyright law is to secure a fair return for an Ã?¢â?¬Ã??author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (“The primary objective of copyright is not to reward the labor of authors but Ã?¢â?¬Ã??to promote the Progress of Science and the useful Arts.’”); Fogerty v. Fantasy Inc., 510 U.S. 517, 524 (1994) (“The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.”).

    So, when it comes to picking a winner between the public good–solving the orphan works problem counts in that column–and creators’ rights, we already know which way Congress and the Courts have to go according to the Constitution: public good!

    With this in mind, Jerry and I argued that the orphan works problem is evidence that copyright law protects creators’ rights too strongly right now, because too many works go uncopied and unrestored for fear of infringement litigation. In many instances, these fears are unfounded because the works are either in the public domain already or their owners would have consented to their use if they could have been found.

    That said, the bar for a reasonable search has to be high enough that it’s not a sham. Courts are good at sniffing those out. So, although I can understand the creators’ concerns, it is still an acceptable solution to require people to do a reasonable search in good faith and then give them some legal cover for their efforts. Right now copyright law doesn’t do that, but it should.

  • Gayle F. Hegland

    Not an Orphan Works Amendment.

    by Brad Holland

    March 21, 2006

    For over a year, we’ve used these emails to warn you about the coming Orphan Works amendment. Now it’s time to call it by its real name: This is not an “orphan works amendment.” An OW amendment would have applied to old work whose authors are hard to find. This proposal will apply to past, present and future work. It will be retroactive. It will interfere with working artists and commercial markets. It will nullify your exclusive rights to your work. It is the undoing of existing copyright law and it’s a challenge to the rest of the world to follow. If you’ve never cared about copyright law before, this is the time to start.

    The madcap rush to ram a bill through Congress suggests that there are special interests who want to get it on the books before it can be exposed for what it is. These special interests are still not happy with the Copyright Office’s proposal. They want no penalties for infringement or a cap no higher than $200. These groups are well-funded, well staffed and they’ll be lobbying full-time to get what they want. Congress has warned us that very little is negotiable, but this is not the time to lie down and die. Last Wednesday, the IPA filed written testimony with the House Judiciary Subcommittee. We’ll email you the text of that testimony tomorrow.

    -Brad Holland, for the Board of the Illustrators’ Partnership
    This may be republished, posted or forwarded in its entirety to any interested party.

  • Gayle F. Hegland

    Not an Orphan Works Amendment.

    by Brad Holland

    March 21, 2006

    For over a year, we’ve used these emails to warn you about the coming Orphan Works amendment. Now it’s time to call it by its real name: This is not an “orphan works amendment.” An OW amendment would have applied to old work whose authors are hard to find. This proposal will apply to past, present and future work. It will be retroactive. It will interfere with working artists and commercial markets. It will nullify your exclusive rights to your work. It is the undoing of existing copyright law and it’s a challenge to the rest of the world to follow. If you’ve never cared about copyright law before, this is the time to start.

    The madcap rush to ram a bill through Congress suggests that there are special interests who want to get it on the books before it can be exposed for what it is. These special interests are still not happy with the Copyright Office’s proposal. They want no penalties for infringement or a cap no higher than $200. These groups are well-funded, well staffed and they’ll be lobbying full-time to get what they want. Congress has warned us that very little is negotiable, but this is not the time to lie down and die. Last Wednesday, the IPA filed written testimony with the House Judiciary Subcommittee. We’ll email you the text of that testimony tomorrow.

    -Brad Holland, for the Board of the Illustrators’ Partnership
    This may be republished, posted or forwarded in its entirety to any interested party.

  • Gayle F. Hegland

    3.29.06-Video Webcast/Oversight Hearing on “Remedies for Small Copyright Claims”

    To watch the March 29, 2006 Video Webcast of the Oversight Hearing on “Remedies for Small Copyright Claims” you can click below on the House of Representatives Judiciary Subcommittee on Courts, The Internet, and Intellectual Property link. Look under HEARING DOCUMENTATION and then click on “Video Webcast”. The complete video is 54:54 minutes long and uses RealPlayer.

    http://judiciary.house.gov/oversight.aspx?ID=226

    The four on the Witness List reading statements and answering questions are:

    1.) Paul Aiken-Executive Director, Authors Guild.
    2.) Jenny Toomey-Executive Director, Future of Music Coalition.
    3.) Brad Holland-Founding Board Member, Illustrators’ Partnership of America.
    4.) Victor S. Perlman-General Counsel and Managing Director, American Society of Media Photographers, Inc.

    Thanks for your forum.

  • Gayle F. Hegland

    3.29.06-Video Webcast/Oversight Hearing on “Remedies for Small Copyright Claims”

    To watch the March 29, 2006 Video Webcast of the Oversight Hearing on “Remedies for Small Copyright Claims” you can click below on the House of Representatives Judiciary Subcommittee on Courts, The Internet, and Intellectual Property link. Look under HEARING DOCUMENTATION and then click on “Video Webcast”. The complete video is 54:54 minutes long and uses RealPlayer.

    http://judiciary.house.gov/oversight.aspx?ID=226

    The four on the Witness List reading statements and answering questions are:

    1.) Paul Aiken-Executive Director, Authors Guild.
    2.) Jenny Toomey-Executive Director, Future of Music Coalition.
    3.) Brad Holland-Founding Board Member, Illustrators’ Partnership of America.
    4.) Victor S. Perlman-General Counsel and Managing Director, American Society of Media Photographers, Inc.

    Thanks for your forum.

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