DigitalPro Shooter Volume 4, Issue 8, March 9, 2006

At the end of the day, all most photographers own besides a bunch of beat-up cameras and a hard-drive full of bits (or a cabinet full of slides) is the copyright to their images. Thus it is with near terror that photographers who have read through the suddenly fast-tracked "orphan works" law begin to panic.

The well-intentioned proposed amendment to the Copyright Act is designed primarily to allow museums, libraries and other "keepers of our heritage" to be able to safely use copyrighted works if they can not find the copyright owner to acquire a license. Comments made by citizens about the bill show that it also has support from the clients of photographers who want to make additional use of their images but can not reach them any longer.

In principle those are laudable goals. However, the bill as currently drafted is terribly one-sided in favor of the publishing and library industries and very flawed when it comes to protecting the rights of photographers. In particular the draft bill:

• Makes it legal for anyone desiring to use a copyrighted work for any purpose to go ahead and use it without a license if they have made "good faith, reasonably diligent search" to locate the copyright owner.

• Use of such an "orphaned work" is free, unless the copyright owner comes forward. But even in that case the copyright owner can only claim (or sue to claim) the normal license fee, but not any additional damages or attorney's fees--even if the work had a registered copyright.

• And even if the copyright owner discovers the violation, if the user is not making commercial use of the image, then there is no recourse and no compensation.

Why this COULD BE Terrible
for Photographers

The bill (and the Copyright Office report on which it is based) openly assume both that most copyrighted works are credited and that it is easy to locate the holder of a copyright if a work is registered. These assumptions are both blatantly false in the case of photographs. Many images are no longer directly credited to the photographer and there is no effective way to search to see if an image is copyrighted or who the copyright holder is even if you have the image in hand. While paying some lip service to the notion that photographers needed protecting, Jule Stigall, testifying for the Copyright Office, essentially brushed them aside with vague thoughts about future search capabilities and stood behind the legislation as written. He had no concrete plan for how the process of registering and locating a copyright owner or photographer might work and how it could be tied to the effective date of the legislation.

In essence the amendment as worded makes it okay to steal from a photographer if you don't know who they are or how to ask them for permission. And if you get caught the worst that can happen is that you have to pay what you would have anyway, or maybe not even that. We're sure you can think of ways this could affect you in your specific line of photography, but to give a few possible examples:

• The client of a social (Wedding/Event/Portrait/Sports) photographer wants reprints. They look in the yellow pages and can't find the photographer listed anymore. Off to the photo lab and never look back.

• Your image is used in a publication, uncredited as is increasingly the case, and the publisher gets bought or closes it's doors and can't be reached. This bill could be interpreted as giving anyone free reign to pirate the images in the publication.

• Your image is pirated and put on the web. Someone sees it, likes it, and wants to use it. Since it is pirated they don't know who you are (and of course the meta-data has been stripped) so they can't try to reach you, so they can--potentially legally--go ahead and use the image without further compensation to you. If you take the trouble to track them down and sue them the most you can recover is what your initial license fee would have been. Hardly an incentive to try to find violators.

Are these extreme? Maybe, but they're all real examples of what could happen if the bill is passed as currently worded. And for some reason Congress seems determined to fast-track this bill for passage this Session.

At the hearing on this bill on March 8th at the sub-committee of the House Judiciary Committee on Courts, the Internet, and Intellectual Property everyone involved agreed to try to get consensus wording by the end of March so the bill could proceed. David Trust, CEO of Professional Photographers of America was the only witnessed who presented the issues facing photographers. His articulate opening statement did a good job of framing the issues, but frankly he was boxed in during questioning, and appeared to in the end agree that a couple fairly minor concessions might make the bill acceptable. He was put in a tough position by the committee--since all the other witnesses represented libraries, museums, the Copyright Office who drafted the bill or publishers, all of whom are in favor of gutting the rights of independent photographers if they make their lives more complex--but it would have been helpful to see him put up more of a fight about some of the principles involved.

Fortunately, Representative Howard Berman did a good job of at least helping frame the issues in a reasonable way, which elicited some possible points of compromise and ways out of the conflict. In particular the two items which were broadly agreed upon were:

• Exception on the limit of recourse in the event that the offender was shown not to have made a diligent search if the copyright was registered. A nice thought, but this puts a huge burden on the struggling photographer to prove sophisticated points of law--possibly in a remote jurisdiction.

• Delay the effect of the legislation on photographs for a year. All well and good, but unless other steps are taken to make it fair by that time it is only a sop.

Also discussed were the options of:

• Allowing photographers to get redress in small claims court. Also a good option (As Trust made clear but his word choice was possibly lost on the committee) but obviously sometimes the damage will be for larger amounts.

• Berman proposed that if other clients could find the photographer that would be prime facia evidence that the work was not orphaned. Very interesting, although I'm not sure I see the museums or the copyright office agreeing to this without a fight.

Cardinal Photo Safaris Update:

Alaska Grizzly Bear & Puffin trips, July 2009:
(These trips always fill up, so make your plans soon!)

Our 2008 sessions all sold out but we've just announced our two trips for 2009, so learn more or sign up soon. We'll have plenty of Alaskan Brown "Grizzly" Bears, as well as visit rookeries for Horned Puffins, Tufted Puffins, Common Murres and Kittiwakes. We're also likely to have some good Bald Eagle photographic opportunities and of course scenic shots of mountains, coastline and lovely flowers. This is a great trip for couples or non-shooting companions as the lodge is in a beautiful setting on the coast with plenty of opportunity for other activities.

Africa : Botswana, November 14-26, 2009
(10 photographers maximum --
our 2008 trip SOLD OUT so book early)

Our trips feature plenty of mammals & birds. We'll see lions, elephants, giraffe, leopards, cheetah and quite a few varieties of antelope along with several dozen other species of exotic animals. For more details or to reserve your space now.

Burma and Cambodia, December 2009:

We're excited about returning to Burma (Myanmar) and Cambodia. The main trip will be divided between the temple areas in Cambodia (especially the Angkor temple complex including Angkor Wat) and Burma (including historic Mandalay and the plain of temples at Bagan, as well as the capital Yangon, nee Rangoon). Learn more. We'll also have an optional post-trip extension to Laos, featuring Vientiane & Luang Prabang.

We just finished a second very successful 2007 trip (and about to head off for our 2008 trip) and are ready with what we think will be an even better itinerary for next December, 2009. Learn more about the trip now.

South Texas Birds, April 12-18, 2009
(6 Photographers Maximum, filling up quickly)

After a great safari this year I'm anxious to get back to "The Valley" in south Texas and join a few of you to really focus on bird photography for a week again next year. There is no better way to improve your shooting skills, hone your flight shot technique and come home with lots of great images than by spending a week with us at these awesome Lens & Land properties.

We have some great upgrades for 2008, including luxury accomodations at a brand new game lodge close to the ranches. The small trip size (maximum 6 shooters), private ranches, and full service structure (all your local transportation, room, meals and drinks are included!) make this the premier trip to South Texas for bird photography. Learn more or get your deposit in now.

Read what past participants have to say
events updated 7/26/2008