New Congess, New Orphan Works Push

January 25th, 2007 | Posted in News

I’ve written several times about the Orphan Works legislation, and it’s implications on freelance illustrators. This post describes it best, but here it is in brief: The Orphan Works Act is a change to copyright law that allows any party (publishers, advertisers) to use a piece of intellectual property (a photo, illustration, cartoon, etc.) if the owner of the copyright of said piece of intellectual property cannot be identified or located. The law requires a ‘reasonable effort’ to search for the copyright owner, but does not define what a ‘reasonable search’ entails. The law also limits the money that can be recouped by the copyright owner even in they notice their copyrighted work was used without being contacted, and somehow prove the user did not make a ‘reasonable effort’ to find them.

I think anyone can recognize the problems here. There is no clear definition of a “reasonable effort” in searching for the copyright owner, so getting a court decision that someone did not make that effort will be tough. Because of the limit of money copyright owners can get in damages, the worst that can happen is infringers get caught and have to pay about what it would have cost them from the copyright owner in the first place. Finally even if some kind of database is created to organize a search for copyright holders (can’t see how that’s possible, especially with visual images) allowing image users to use any works they find laying about for free without fear of getting sued will discourage them from paying for the creation of new images, seriously decimated the market for creating new, original works.

Now that we have a new congress convening, the Orphan Works travesty is back on the stove. Here is the latest from the Illustrator’s Partnership:


Orphan Works Revisited

It appears that Orphan Works legislation will soon rear its head again. The word from Washington is that it will again be fast-tracked and its sponsors will resist “any significant modifications to the existing draft.”

Last year, visual arts groups came together as an informal coalition. We shared information and coordinated a letter writing campaign. Monday, Jan. 29 these groups are scheduled to meet in Washington to discuss a unified strategy. The groups (listed below) will formally be called The Imagery Alliance.

Each member organization has been asked to make a voluntary contribution to the Alliance. But since some groups are forbidden by their tax-exempt status to engage in lobbying, the Alliance must first determine the best way to collect and distribute money. In some cases, it may be necessary for groups to simply educate their members by directing those who wish to contribute to a tax-appropriate orphan works fund. We’ll update you when this has been determined. We believe that any money raised in this cause should be used specifically to improve Orphan Works legislation and not consumed in maintenance, administration or for other organizational expenses.

?¬¢‚Äö?ᬮ”The Board of the Illustrators’ Partnership

The Imagery Alliance:
Advertising Photographers of America (APA)
American Institute of Graphic Arts (AIGA)
American Society of Media Photographers (ASMP)
American Society of Picture Professionals (ASPP)
Association of Photographers (AOP) (UK)
Art Directors Club (ADC)
British Association of Picture Libraries & Agencies (BAPLA)
Coordination of European Agencies Press Stock Heritage (CEPIC)
Editorial Photographers (EP)
Graphic Artists Guild (GAG)
Illustrators’ Partnership of America (IPA)
North American Nature Photography Assoc. (NANPA)
National Press Photographers Assoc (NPPA)
Picture Archive Council of America (PACA)
Picture Licensing Universal System (PLUS)
Professional Photographers of America (PPA)
Society for Photographic Education (SPE)
Stock Artists Alliance (SAA)
White House News Photographers Assoc. (WHNPA)

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists

I hope legislators will listen to reason and understand this proposed law is paramount to creating a free stock house for photos and illustration out of the internet and will badly damage the ability of photographers and illustrators to make a living. It will also suppress the creation of new work. It’s bad for the creators of the works being used without their permission or compensation. It’s bad for those who are trying to make a living creating these kinds of works. The only parties it’s good for are the media giants who can cut the costs of publication. Let’s hope someone comes to their senses in Washington…. is that an oxymoron?


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