Opposition to orphan works legislation

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.

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