There are currently two bills before Congress called the “Orphan Works” bills. One is before the House of Representatives and the other is before the Senate. Both bills have moved out of committee and are being prepared for debate before their full body of Congress. The Senate’s version is worse the the House’s version. Both will allow commercial entities to use your photographs and other creations for any purpose they desire, and will strip creative professionals and citizens alike of their ability to recover statutory and punitive damages against unauthorized users. Commercial entities of all kinds support the Orphan Works legislation because it gives them permission to “crowd source” your creations and use them without you knowledge and without you being compensated for the use.
The spirit behind the Orphan Works legislation is that libraries and museums want to be able to display and preserve copyrighted works for which the copyright owner cannot be identified or located. This is a good intention to preserve these works for the good of the public. This would be a non-commercial use of the copyrighted works and is a good cause. These can be visual works like photographs, paintings, film, etc. It can also be any other form of copyrighted work such as music and other sound recordings, written text, scripts for plays, music scores, etc, etc, etc. Current copyright law requires permission from the copyright owner to use or display these works. Without the copyright owner’s permission, these works have to be kept private and not publicly displayed.
The problem with the current Orphan Works legislation being considered is it does not limit use of Orphan Works to libraries and museums and other preservation entities. It leaves the doors wide open for use by any entity – including commercial business, advertisers, publishers, etc. It also does not limit the source of work to that produced only by professionals. It permits use of ALL sources of copyrighted work – professional, or otherwise (like Mom and Dad’s vacation pictures, pictures your kids took, etc). The only protection built into the legislation is that the user of the image must show a “due diligence” to find the owner before using the work without their permission. If the copyright owner cannot be found, the work will fall into the category of “Orphaned” – meaning it has no known owner – and the user will be permitted to use the image however they choose with relative impunity.
Here is the danger this legislation poses to every individual – both creative professionals and average citizens. Suppose you post a vacation photograph you took to a website – Shutterfly, MySpace, Facebook, Flickr, Photobucket, etc. Then suppose someone likes it, and copies and reposts it elsewhere (or e-mails it to all their friends). Now a commercial company finds it (or receives that e-mail) and asks them if they own it. The second person says “no, I found it on the internet”. Then the commercial company asks “do you know who took it?” and the second person says “no, I can’t remember where I got it”. So the commercial entity goes to a special copyright registry service that Orphan Works legislation requires be established and registers their intent to use the image. If no one responds, the user is now permitted to use that image however they want without paying the person who took the picture and without risk of facing statutory or punitive damages. The most the copyright owner can do is collect a “license fee” for the use, and the user gets to determine that fee – not the copyright owner.
Let’s say a major international company uses your photograph in a campaign that takes a stance on an issue that is completely in opposition to your values and you find out after the fact. You have relatively little recourse to stop the use and little recourse to collect any money. The user of the image can find some image similar to yours on a cheap stock photo site like iStockPhoto and claim the fair license fee is $1. So you have spent hundreds or thousands pursuing the company and now they only owe you $1. Current copyright law places the responsibility for determine fair fees on the copyright holder. Orphan Works lets the infringer determine the license fee.
Here is another example. Imagine finding personal home video clips that your child posted on YouTube on a television commercial for some product or activist group you do not support or which you find offensive. It will be nearly impossible for you to stop them from continuing to use it if they can demonstrate that they tried unsuccessfully to find the copyright owner. They also will not be required to pay you any statutory or punitive damages as a result of their use of your video footage.
Do you want to allow commercial entities to use your personal photographs, video clips or other creations without your permission and without any recourse to stop them from doing it? Companies like MySpace and Facebook and Google want the Orphan Works legislation to pass because it will give them permission to use your personal photographs for commercial gain or to promote particular causes without your knowledge or authorization.
In addition to moral concerns over use of your work, the creative professional stands to lose tens of thousands in revenue because the commercial user of their work can cry “orphan work”. This could put creative professionals out of work and kill entire industries. The purpose of copyright law is to protect the work of creative professionals. It is supposed to encourage them to continue to create by allowing them to earn an income from their work. Do you have relatives or friends who are creative professionals? Do you want to see their careers stopped by Congress? That is a very real danger of Orphan Works.
Every citizen needs to contact their members of Congress and tell them you oppose the Orphan Works legislation on both the House and the Senate. It will be in your best interest to stop this bill before Congress ends up giving every company in the world permission to use our personal photographs.
It is extremely important to make your voice heard before Congress passes this legislation. We need Congress to NOT pass this legislation. A better solution to Orphan Works is to make appropriate changes in the “Fair Use” rules under existing copyright law to permit museums, libraries and the other historical preservation entities to preserve these works for the public good. There should be NO allowance for commercial use of these works. It is not in the public interest to permit commercial entities to use orphan works. It is only in the interest of the corporations, investors and shareholders.
Please go http://capwiz. com/illustratorspartnership/home/ and send them a letter. Call them. Fax them. Write them via the link provided. Be courteous, but be determined. Present facts like I have written here. Don’t be emotional. Most members of Congress are lawyers. They work on facts, not emotions.
Please forward this information to everyone you know. Congress needs to get thousands of letters from individuals, not just the trade associations.
These are your photographs and other creations. Protect them and protect yourself. Do something about it. Contact your members of Congress and tell them to oppose Orphan Works and instead consider changes to the “Fair Use” rules. That is the proper place to address the needs of libraries, museums and the preservation groups who really are interested in the public good.
If you have questions about this legislation, contact me directly. I will answer all questions as best I can. A great source of information is John Harrington’s blog “Orphan Works 2008 – A Wolf In Sheep’s Clothing”. John has written many posts on the Orphan Works legislation and opposes it. You should oppose it too by voicing your position with your Senators and Representative in Congress. They are elected to their position to represent the people in their districts. Make sure they are representing your position.
A lot of people will feel this only affects creative professionals and doesn’t concern the average citizen. This could not be further from the truth. Remember the “crowd sourcing” scenario I provided above. Every work that any individual creates is subject to abuse through the Orphan Works legislation. Commercial entities will encourage Congress to pass this legislation so that they can use yours, mine and every other person’s creations with impunity. Don’t let that happen. Take action now!!!
