Once again, orphan works is being discussed in Congress. We knew it’s not going away. Ed, along with APA (American Photographic Artists) has submitted a plan for congressional consideration to compensate and photographers whose works have been “appropriated” under the banner of “orphan works”. Read the entire PDF proposal at this link.
We feel this will plug the biggest loophole in any orphan work legislation. The proposal requires that a user engage in a real life, due diligent effort to locate the source of any photo it intends to use. If after making a good faith, documented effort and failing to determine the source of the image, only if such a good faith effort is made may employ the photo without fear of being socked with a mega claim for willful copyright infringement.
This stops and prevents infringers from using the Jon Lovitz’s Tommy Flanagan “Pathological Liar” character’s typical, lame excuse “Yeah, that’s the ticket, we, ah, looked for the photographer. Yeah we really looked, really hard! Yeah, that’s it”. If you never heard Lovitz’s characterization, check this video out or Google any of his SNL skits.
If you believe the playing field ought be leveled between the typically “little guy photographer” and the usually well heeled corporate infringer, you would do well to write to your members of Congress in support of this proposal.