We don't normally cover a lot of "news" here in the Corner Blog, but this particular issue is one that directly affects us as artists - as photographers. If you only read one thing today, read this article. I wanted to do this issue justice, so instead of writing it myself, I asked Karen, one of the great mods in the PhotographyCorner forums, research and write this, and she did an amazing job. Take the time to read it the whole way through, then pass it along to all your friends, post it on your blog, email it to anyone you know that is an artist, whether they're a photographer, graphic designer, painter, whatever. Seriously. It's that big of a deal. So, without further adieu, I'll hand the rest of the post over to Karen:

When I first signed on to research and report on the proposed Orphan Works Act of 2008 I decided that I would go into this project with an open mind and not rush into false alarm. The more I read, the more concerned I became. Please take time to review this article and the links provided. This involves your rights as a photographer.

So what is the proposed Orphan Works Act of 2008? It is a bill to provide a limitation on judicial remedies in copyright infringement cases involving Orphan Works.

The premise is to allow "orphaned works" (where the copyright owners have either died, or the copyright has been abandoned) to be released to libraries and museums with limited remedies to restrict damages should the registered owner discover infringement.

So, it's great that libraries and museums will be able to use historical works. Or is it?

The proposed Orphan Works Act of 2008 will reverse 32 years of copyright law.

The problem is that there are no provisions to restrict the ability to orphan newly created works. All photographs, paintings, drawings, and sculptures could easily be orphaned regardless of when they were created, and well before the owner of the copyright learns about the infringement. Every photo, graphic image, and sculpture could be categorized as orphaned work, even a photograph taken yesterday.

So how can that happen?

Under current law, if you discover infringement of your copyright, you have the security of your registration filed with the Copyright Office, and have legal remedies to protect your art, including statutory damages, legal fees, and costs.

Under the newly proposed law, the majority of the provisions in the Act protects and insulates the infringer, restricts the copyright holder’s ability to stop infringement, and limits or disallows statutory damages, legal fees, and costs. This Act basically negates a copyright owner’s exclusive right to their original art and essentially allows adverse possession of intellectual property (photographs, drawings, sculptures, etc).

The government will certify privately maintained registries (plural) with a variety of multiple categories and subcategories. Already domain names for these proposed registries have been set up in anticipation of the proposed Orphan Works Act of 2008. How many times and places will you have to pay to register your work in order to feel secure?

To orphan works under the proposed new law, the "user" (the infringer) simply needs to make a "reasonable" effort to locate the owner. What is considered "reasonable" is poorly defined. They could perform a search in a couple registries and miss the ones where your copyright is filed.

Once you discover infringement, you need to provide notice of the infringement which includes who you are, where you are, and

(Say that fast three times). Your remedies (ability to protect your exclusive right to your work) will be limited as well. First, the new law requires infringement actions to be filed in Federal Court, and limits or disallows statutory costs and fees. So even if the copyright owner is successful in proving an infringer's failure of a due diligent search, damages, fees and costs to defend the copyright would be either disallowed or determined on a case-by-case basis. It may be difficult to find a lawyer to defend your rights.

Another concern is contained under the Act's "Conditions for Eligibility" where it sets forth that remedies are limited where the infringer:

I read this section as allowing an infringer to use copyrighted work even if the legal owner is discovered through the required search, limiting the copyright owner's legal remedies if the infringer provides attribution (ok, does the infringer say "the devil made me do it?"). This type of language ties photographers' hands.

So even if you discover infringement and file a claim, you may not be able to restrict your work that is being utilized in ways you had not intended, agreed to, or licensed.

Who benefits from this Bill? Certainly the libraries and museums would. But, both Corbis (Bill Gates) and Getty have spent millions of dollars for an aggressive lobbyist in Washington who is pushing the proposed law on a fast track, hoping that The Orphan Act will be approved quickly, perhaps by this summer.

Who wrote this Bill in the first place? It was written by eight law students and Peter Jaszi. Simply put, Peter Jaszi is a professor of law who believes that all forms of art, once created, belongs to the public.

Who will this effect? All of us!! With the internet, our work can be downloaded, and ownership trails will be difficult to maintain. International artists, who need not mark their work to assert their exclusive right to copyright, will be in jeopardy. Small business photographers could possibly lose all control of their work.

So currently your photos are being picked off your blog and put on private sites and blogs because someone thinks your image is cool. No harm, right? Wrong. That dilutes ownership and someone wanting to use it for commercial use is one step closer to free art.

The Illustrator's Partnership of America has rallied and spent large amounts of money for a lawyer in Washington to protect artist’s interests. They have about 20 groups in alliance to offer support.

The APA (Advertising Photographer's of America) is active in the opposition of the structure of the proposed Act and believes it must be rewritten to protect all photographers and has stated:

The APA is encouraging that everyone writes to their representatives to voice their concerns.

The ASMP (American Society of Media Photographers) initially took a conservative stance on the proposed law and was of the opinion that the language could be written to protect photographers' rights. However, on May 17, 2008 the ASMP issued this statement:

Both the APA and the Illustrator's Partnership of America have letters already prepared for anyone desiring to become involved.

I know as photographers we may be otherwise involved with deadlines, out on jobs, or working up our photographs, but this is one time we should all step back, take a moment to see what is going on, and perhaps drop a line to our congressmen to let them know our concerns with the proposed Orphan Works Act as it is written. Even casual hobbyists should take interest because a photograph taken of a family member posted on a blog could easily become orphaned and utilized in manners never intended.

Let's not allow this law to change our exclusive rights. Let's keep Getty and Bill Gates out of our back pocket. If they or others want to use our photographs, they can contact us, and license the work as the current laws provide for.

Here are some excellent links to learn more:

• http://www.apanational.com/i4a/pages/index.cfm?pageid=1
• http://www.asmp.org/news/spec2008/orphan_update.php
• http://illustratorspartnership.org/
• http://www.prweb.com/releases/2008/05/prweb911944.htm
• http://www.stockartistsalliance.org/orphan-works-issues
• Professional Photographers of America’s prepared statement submitted to the House or Representatives Committee on the Judiciary: http://judiciary.house.gov/OversightTestimony.aspx?ID=571