Pro-Imaging

Orphan Works

What follows is a series of postings made by Debra on the subject of the Orpan Works bill.

In a move that can only rival in its' monumental stupidity and lack of foresight New York City's decision to allow the Dodgers to leave, ASMP is encouraging your Congressional representatives to pass the Orphan Works bill presently before them. While negotiating on behalf of all of the major photography or illustration organizations, ASMP evidently made promises they had to keep.

According to ASMP, their justification for this endorsement is based on the belief that if they didn't endorse this bill, the next would be worse. HUH???? This is the worst revision to the Copyright Law ever and I'm hoping that all will truly understand what the ramifications of this will be. 

This bill attained ASMP's endorsement because they just didn't have the balls to stand up and fight. It's hard to imagine what they would have done if they were not supposedly your friends. Any organization that has clearly abandoned the best interests of its' membership should not have members.

Photographers should make their voices heard. Renounce your membership, then write Congress.

It is no coincidence that its' initials spell OW.

For more information and commentary, please go to Photobusinessforum

Re: Orphan Works

The following is a response to my post on another forum. I have asked the two people I was responding to for permission to use their quotes, but have not heard back from them and most likely will not, so I will paraphrase what they said.

One person said that his understanding was that there would hurdles to cross and hoops to jump through before an orphan works status could be claimed. He also suggested that sometimes a limb needs to be severed in order to save the body.

Another stated that the current bill is a big improvement over the original bill and that that the facts can be found on the ASMP website. He asked me to not spread rumors and continue fear-mongering. He cited my call for ASMP members to resign and and called it irresponsible behavior. He also suggested that the behavior is destructive and that it is not in my own best self interest.

My response is quite lengthy, so you may want to bring snacks!

Re: Orphan Works

Yes, unless that limb happens to be your head. Decapitation is exactly what the orphan works legislation will do to your business and to your profession. 

Once again, I am getting to witness in real time exactly why this profession is such a mess. Most photographers traditionally have subscribed to one of two strategic paths:

1. Do nothing in the hopes that others will act in your best interests,

2. Follow the leader like lemmings off a cliff.

The end results of those two brilliant game plans are evident.

Everything that has happened in this industry thus far - work for hire contracts and copyright buyouts, the consolidation of the stock agencies, royalty free stock, wholly owned content, microstock, all pale in comparison to the potential impact of the removal of your ownership rights by the orphan works revisions to copyright law. This revision is the worst development in the history of the profession.

Even worse than the star filter! Additionally, it negates the previous efforts of those instrumental in bringing about the revisions to the 1976 Copyright Act.

The current legislation will not require infringers to jump through any significant hoops before using your work. All they will have to do is:

1. Register their intent to use the work at the copyright office. This will take all of 30 seconds and will serve no purpose whatsoever. Are you going to visit the copyright office site daily and review tens of thousands of descriptions of orphan photographs submitted each week? And if you do, will you recognize your work from a text description? And...

2. After the infringer takes a few seconds to register their intent to infringe on your work, they need only pay an orphan works search service (and there will be dozens of these, again making it possible for others to make more money off of photography than photographers) to run an automated query of the available registries. Once these third party search services are established,the whole diligent search process will take just a minute or two,after which they will provide the infringer with a certificate of a failed search for your work.

The infringer will then be free and clear to do pretty much whatever they want with any of your photographs that they might have found on the web, or in their file drawers, or scanned from a book or magazine, where your name was either lost from the metadata or cropped out when scanning, etc...This is very real, and it is your future if the orphan works law passes.

The negotiations by ASMP and PPA achieved no significant improvement or benefit to photographers relative to the previous legislation. Other than the omission of the use of orphan images on "useful articles" (keychains, coffee mugs, etc), which is not significant – its pretty much meaningless unless you are a retail photographer.

In exchange for a few meaningless concessions, the trade associations traded away your future by promising congress that they would publicly endorse the orphan works bill.

Previously, congress took note of the waves of photographers contacting them to explain that their livelihoods were at stake, and that the passage of the orphan works amendment would cause tremendous harm to a profession that is already reeling as the result of consolidation, stock, the digital revolution, 9/11, and so many other challenges.

Now, despite the devastation that will occur to their members, we have the two largest photography trade associations in this country stepping forward to sing this legislation's praises.

ASMP and PPA say that they are endorsing this bill because if this one doesn't pass, the next one may be even worse. Hey ASMP and PPA, if this is a betting game, remember that you might be holding the cards on behalf of your members, but the chips on the table aren't yours.

Those chips are your members' photographs, studios, homes, groceries, kids college education, etc. By endorsing this legislation, you've just gone "all in" with your members' chips, without consulting your members. That's some pretty high stakes poker. And from the looks of it, your strategy is not going too well.

Could you please give me a list of these improvements? But please compare it to the last bill, not the Copyright Office Report which is what is posted on the ASMP site.

Exactly what rumors am I spreading? Fear-mongering? I have pointed out realities associated with this bill. That's very different from fear mongering, although photographers should be scared. I think the fear mongering label is better suited to those writing that the next bill would be worse should this not pass. Irresponsible behavior? I suggest that the responsibility of the trade association leaders was to fight this bill like hell, and then take their chances with the next one, which you should fight like hell too. That's their job as trade association leaders, right? To fight for their members' rights?

Right? They could very easily bury congress in letters and emails opposing this legislation, which is EXACTLY what they should be urging your members to do right now.

I have been and always will be an advocate for photographers and their rights. It is in my personal best interests to remain true to myself.

I do not promote one trade association over another and am not out to harm ASMP or PPA. We are all presumably on the same side here. But those responsible for these endorsements have not only failed to protect their members' interests, but they have placed the entire profession at risk. If this amendment should pass, it will be considered the worst strategic blunder for this industry as of yet.

Any photographer who is content to believe that this nightmare of a bill should be endorsed by photographers because some unknown future bill might be worse, should be a lemming and jump off that cliff.

However, I think a better suggestion would be to:

1. Ask hard questions of your trade association leaders - like demanding a thorough accounting of the negotiations that have gone on for more than a year, funded by your membership dues. 

2. Request to see a detailed comparison of the previous bill to the current bill, point by point, and ask to see all changes - both good and bad.

3. Request a description of exactly what might be so much worse in a future unknown bill that would justify the signal to congress that thousands of their members support the passage of this bill.

I think it is commonplace human nature to believe that those we entrust with our supposed best interests will always deliver. However, "blind faith" is best reserved for the name of a 60's rock group.

© 2001-2008 Debra Weiss - All rights reserved. Used by permission