Orphan Works Alert - July 2006

When the copyright holder of a work cannot be located, it's commonly referred to as an "orphan work." The US Copyright Office has proposed legislation called The Orphan Works Act of 2006 that could essentially gut the copyright protection now guaranteed to photographers. As currently written, the proposal offers a huge loophole that severely limits the copyright protection of images that can be classified as "orphan works."

All users would need do is make a "good faith, reasonably diligent search" to try to find the copyright owner of an image before they call it an "orphan" and use it anyway. If the copyright owner discovers the use, all they would be entitled to is "reasonable compensation" with no allowance for attorney's fees or means to collect. If the usage has no "direct or indirect commercial advantage," then the photographer would get nothing.

While "Orphan Works" legislation is aimed at making archival works assessable to museums and libraries, it makes no distinction between these non-profit users and commercial users, nor between historical works and contemporary online imagery. This can only result in a huge potential for MORE infringement of stock images and LESS recourse for stock photographers.

What is SAA doing about it?

SAA has joined a coalition of industry groups to respond to the Copyright Office proposal. Initiated by the American Society of Media Photographers (ASMP), the Coalition also includes the Advertising Photographers of America (APA), Editorial Photographers (EP), Picture Archive Council of America (PACA) Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), and the Illustrators Partnership of America (IPA, which carries with it approximately 40 other organizations).

In the UK, the Association of Photographers (AOP) and the British Association of Picture Libraries and Agencies (BAPLA) have joined the coalition. Although their political clout is necessarily indirect in this matter, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the US market, but also it could set up pressure for similar laws in other countries.

SAA is actively working with the Coalition members and dedicated to assisting in any way we can. As a start, we are posting information on the SAA public web site and sending out letters to increase awareness across the industry, comunicating with decision makers and other interested parties, attending upcioming Congressional hearings, and providing comments and feedback.

What can YOU do to help?

Take the time to understand the severity of this issue. There is excellent commentary posted by members of the Coalition that explains the specifics of this proposal and other resources.

Many photographers have already responded by writing to their home legislators and the members of the House and Senate Judiciary Committee who will be voting on this bill. More active participation will be needed from you as “Orphan Works” moves forward in coming weeks and months so stay tuned.