Much is being written, many hands are being wrung and even worse for Ed, hair is being pulled out in reaction to some form of an Orphan Works that may be proposed to the Congress. This is won’t be the first such proposal and maybe not the last. The very same hysteria was exhibited the last time Orphan Works legislation was being looked at in DC.

First, let’s describe/define what a typical orphan work is: you are throwing a 50th anniversary party for your parents, have an old, creased and faded wedding photo that needs to be retouched and you want it blown up to a larger print. Easy, except the studio that shot it has been out of business and/or the photographer who pressed the shutter, passed away years ago. You have done an Internet search and you can find no one to contact. Without permission from the creator/copyright holder you can’t copy, retouch, and blow up the photo without violating the Copyright Law. You are legally speaking, “out of luck”. The photo is termed “an orphaned work” meaning that neither the owner of the work nor someone with legal authority to give any consent regarding use or alteration of the photo can be reached.  Indeed, no such person may even exist.

Here’s another example with a higher profile: you are say Ken Burns, doing a documentary film on America before the Viet Nam war – late 1950s/early ‘60s. You find a great photo of people at a Hanoi nightclub and want to use it. You have your photo researcher check stock houses, historical archives, wire services, museums, etc. to try in good faith to determine the provenance of the image (which appears to have been shot by a western journalist) and most importantly, the identity of its creator. The researcher has no luck after spending many hours on the project – not an unusual scenario by the way. Without permission (a “license’) from the photographer (or legal representative) who shot it, it can’t be used without risking a potential lawsuit. It too, is an orphaned work.

So Congress and the Copyright Office are looking at methods which could correct these type of fairly common problems so as to make use or publication of the images easier. The current proposal will likely not “upend” copyright law. It would not in our opinion, make it super easy for someone to steal your work. We’ve heard all these arguments, this same hysteria, years ago. A few years back Ed wrote a proposal on behalf of APA which was submitted to the Congressional sub- committee studying the issue. Jack at the time was President of PPA and was also dealing with this issue.

Will this be a serious proposal? Yes, it will be. Is it the law of the land? Not by a long shot and to our knowledge there is no single drafted, proposed bill. Should we as an industry try and influence the final form and content of any proposal? Most definitely, but such commentary requires a calm, thoughtful and rational approach.

Orphan(ed) works present problems to commerce that need to be corrected, but the idea that the sky is falling on copyright law thus whipping creators into some kind of frenzy is in our opinion, the wrong approach.

See this article from The Copyright Alliance for an excellent assessment of the current, undue hysteria.

It is very unlikely that any orphan works bill will upend and change copyright law as we know it. But any change should be looked at and our voice and our concerns as an industry should be heard. Unfortunately, getting artists to work together for a common good is like herding cats. Some trade associations might have their own self-serving agenda.

Even if an orphan works bill is passed, the way to defend your work will remain the same as it is today – registration of all of your work at the Copyright Office. Will an Orphan Work law make stealing your work any easier? No. Will we now stop asking and answering our own questions? Yes. You’re welcome.

On line comments are plentiful but most are of no consequence and are based on rumor and industry gossip. Fears that infringers will resort to a “new” legal defense without performing any due diligence in attempting to locate the copyright owner is unrealistic. One will be required to conduct a good faith, diligent search to even attempt to claim that he/she could not find the creator and thus should not pay any penalty for their infringement beyond a “normal” licensing fee. Scenarios to the contrary can be best described as “horse feathers”. Any competent trial attorney can prove whether or not a diligent search was performed. It will not be an easy excuse or hiding place for infringers as some are claiming. Very similar standards/tests exist in numerous facets of personal injury law, SEC cases, sales of businesses, buildings and residences, banking disputes, product liability issues and trials involving alleged faulty design or construction of just about anything. Its simply not a big deal for an experienced trial lawyer to demonstrate the nature and quality of any claimed search or exercise of due diligence.

There will be protocols in place to protect copyright holders. Last go around we also heard BS scenarios as to how easy it would be to steal registered works. Convoluted, disaster stories were conjured and spread. In one “example” a photographer’s blog explained how easy it would be for someone to steal a photo from a Nike ad by cutting off the swoosh logo. Really!? Nike allowing such theft of one of the most valuable logos in history? Nope, not gonna happen.

A photo employed in a Nike ad (See Richard Noble’s cases involving infringement of his shot of Bo Jackson for Nike here) is so ubiquitous that any claim that the creator could not be found is beyond absurd. Saying that you thought such a famous photo was an “orphan work”, would mean you didn’t perform any due diligence (not even a Google search) as required. You would thus not be afforded any protections from any Orphan Works law – no free pass. Laughable lies do not fly in federal courts. In other words, you would be back to protections afforded under the Copyright law as it now exists. Orphan Works legislation would not give a thief a “get out of jail free” card for the asking.

Remember, photographers aren’t the only creators who are copyright holders. There are many other artists, authors, designers, moviemakers, corporations (ie Disney, Apple, Viacom, Time, Inc,) and so on, that depend on copyright protection for their very existence. The rights of copyright owners are written directly into the United States Constitution (and the federal Copyright Law). It has existed longer than the Bill of Rights – The First Ten Amendments – which permit the right to bear arms, freedom of speech, of the press and so on. Copyright will exist long after we are all gone, no matter what some lay people may exclaim on the Internet.

Another issue to note is that a “registry” is being proposed to hold funds that allowing orphaned works to be used. No one knows how or if this idea will or could work. No one really knows who would run such a registry and how they/it would be compensated. One thing is certain; it would involve receiving and paying out a lot of money. And when a lot of money is involved, it’s amazing how many hands reach for pieces of the pie. We wonder if just maybe some of the jockeying now taking place concerns attempts to stake claims to a cash crop. Also, for some trade associations getting their base worked up into a frenzy over an important issue is always a great membership drive tool. And some trade associations are presenting a balanced view. Be wary of fear mongering.

With or without new legislation, registration of your work at the Copyright Office will still remain the cornerstone of protecting your work. Efforts intended to simplify and streamline registration would reflect time better spent. Easing registration and making enforcement more effective would be more beneficial to photographers and artists. Again, that does not mean that we should be silent on the Orphan Works issue. Note that Canada passed an Orphan Works law years ago and the UK passed one recently. Did that cause mass stealing of work, did the sky fall? Not that we know of and “yes” we do know that the Canadian and British systems differs from that used in the US of A.

We believe that the Orphan Works issue has been given a disproportionate amount of time and attention because the issue sounds “sexy”. Streamlining both copyright registration and enforcement are far more important issues as they directly affect the bottom line of every photographer, everywhere.

Rod Serling, our inspirational Godfather here at The Copyright Zone, understood and portrayed the causes and consequences of hysteria better than anyone before and since. He taught that hysteria could only be born and given sustenance where either ignorance or fear of the unknown takes hold. He named that place, “The Twilight Zone”.