Two opposing views from photo experts on how Congress is attempting to address images with uncertain ownership

For all the upheaval that has shaken the photography industry in recent years, one of the more contentious issues is the management of so-called “orphan works” – those created compositions that have no discernible owner or definitive copyright information.

While everyone agrees that something must be decided to protect the copyright of archival images that are currently in legal limbo, consensus had yet to be reached at press time.

The U.S. Senate and House of Representatives have each introduced versions of an orphan works bill this spring. Both proposals would require the creation of an extensive public database of current works. This database would include names and locations of copyright holders, titles and descriptions of works, as well as security features enabled to protect the copyrighted works.

Photographers, however, are deeply divided over which bill would work best. The American Society of Media Photographers (ASMP) backed the House version, H.R. 5889, requiring users of orphan works to submit a “notice of use” to the U.S. Copyright Office, which would work with two private companies to run the database. The Senate bill, S. 2913, does not contain such a notification requirement. As a result, most photo groups, including ASMP, say that S. 2913 would allow too many copyrighted works to be considered orphaned and thus would encourage widespread infringement.

However, on the evening of Sept. 26, as this issue was going to press, the U.S. Senate “hotlined” and passed S. 2913 by unanimous consent. More than 70 photo groups have strongly opposed the last-minute measure.

Now that much of the focus turns to the House version, ASMP called for its members to contact their Representatives to urge them not to adopt the same language that is in the Senate bill, saying it does not contain enough notification safeguards for photographers.

Here are two views from opposite sides of the debate: one in favor of the House legislation, from ASMP’s Victor S. Perlman, and another from prominent photographer John Harrington, who dislikes both bills. H.R. 5889:

H.R. 5889: Logic Over Emotion

When H.R. 5889, the orphan works bill, was introduced earlier this year in the U.S. House of Representatives, ASMP was faced with an extremely unpleasant decision: whether to do the right thing and support it, which would be met with misplaced, misinformed criticism and political backlash, or to do the popular thing and oppose it, which would be easy and look good, but would be to the long-term detriment of our members and the industry. We had to choose between logic and facts on the one hand, and emotion and image on the other.

ASMP has always believed in doing the right thing, so the decision itself was clear. As expected, however, dealing with the backlash has been anything but easy. The amount of incorrect information, the lack of information and the level of antagonism on the part of people with destructive agendas have been extraordinary.

Here are the plain facts: As a trade association, we have a duty to do what we reasonably believe will be in the best interests of our members; we have to act prudently; and we do not have the luxury of taking the risks that individuals can or making decisions without considering consequences.

At the invitation of the lawmakers involved, ASMP was one of only two photographer organizations at the table in the closed-door discussions of orphan works legislation that went on between legislative staff, Copyright Office personnel and representatives of other interested groups for roughly two years. We developed a very strong sense of what their positions were and what each party could and could not obtain.
Based on that experience, we concluded that H.R. 5889 contained most of the protections that we could, as a practical matter, expect to see incorporated in the legislation. It has plenty of problems, and it is far from perfect, but in the real world, it was getting close to as good as we believed we would be likely to get, and supporting it positioned us to achieve further improvements.

PPA, the other photographer organization that had been at the table from the beginning, came to the same conclusion as ASMP and publicly supported H.R. 5889.

Orphan works legislation will significantly affect only those photographers who promptly register their images, and the sad reality is that most photographers do not do that. This means that, as a practical matter, most photographers would not be significantly worse off under orphan works legislation than under the current law. In fact, because parts of the pending legislation would mandate a study of improved treatment of small copyright claims, most photographers would probably be better off overall after enactment of this legislation than they are now.

The problem of users being unable to locate copyright owners is a legitimate one. Almost every group – other than photographers and visual artists – wants an orphan works amendment to the Copyright Act. Because of that, orphan works legislation will, in our estimation, not simply go away if the current bills fail to become law.

Rep. Howard Berman (D-Calif.), chair of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, has been extremely sensitive to the unique problems that orphan works legislation can create for photographers. This can be seen in the differences between the House version and the Senate version. Berman will be leaving that chair at the end of this year.

Whoever his successor is, he or she will not have the same photographer-friendly track record. The likelihood is that, if new orphan works legislation is introduced in a later Congress, it will probably not be as photographer-friendly as the current bill.

Simply opposing orphan works legislation only gets you ignored. You are seen as unreasonable, obstructionist and part of the problem, not part of the solution. Your position gets dismissed. As one lawmaker said to me about two years ago, “The train is leaving the station, and you have to decide whether you want to be on it or under it.” ASMP has the responsibility of making sure that our members aren’t left under any moving trains.

Only time will tell what will happen with orphan works legislation. In the meantime, all ASMP can do is obtain the best information it can, use its best judgment, rely on reason rather than emotion, and do what it believes is best for the long-term good of the industry.