NPPA Cannot Support Orphan Works Legislation

DURHAM, NC – Today the National Press Photographers Association sent a letter to Congressman Howard L. Berman (D-CA) , chairman of the House Committee on the Judiciary, stating NPPA's objections to the "Orphan Works Act of 2008" (H.R. 5889).

"We cannot in good conscience support this bill," NPPA president Tony Overman wrote to Berman.

Overman urges photojournalists who oppose the bill to immediately write to their representatives.

The Illustrators Partnership of America has an online letter generator that can be used to send your Congressional leaders a note of objection about the two current orphan works bills. IPA has customized an individual letter for NPPA members and photojournaists to use, and it is online here.

An "orphan work" is a photograph or illustration that is protected by copyright but whose copyright owner cannot be identified or located.

"We recognize well the difficulties of managing rights for historical images. We believe a carefully and narrowly tailored expansion of the fair use exception to the copyright act would address the legitimate concerns of librarians, historians and educators," a statement from NPPA to the membership said.

"There is no reasonable argument to authorize infringements for commercial use. Unpublished works should also not be exempted – especially since publishing them without their creator’s permission might violate contract, privacy and other legal precepts. If the sharing of historical works is the true goal of orphan works legislation, there is certainly no reason at all to extend infringement exemptions to newly created works."

In Overman's letter to Berman he wrote, "Therefore, on behalf of our board and 10,000 photojournalists, students and editors throughout the country, I urge you to consider the significant economic and artistic harm this draft legislation could cause and amend it so that it: minimizes potential abuse; balances the needs of those who legitimately seek orphan works exemptions; and offers greater protection those who seek to protect their copyrights."

In April 2007 a pair of orphan works bills appeared before Congress. Both are on a “fast track” for approval during this session and a mark-up of the House bill that NPPA objects to took place May 7. The bills would exempt from full protection under U.S. Copyright law millions of pictures – new and old, published and unpublished, even many previously registered with the U.S. Copyright Office.

Both the Orphan Works Act of 2008, the title of the House bill, and the Senate’s Shawn Bentley Orphan Works Act of 2008 (S. 2913) would effectively allow photographs and other created works to be used without prior permission if the actual copyright holder could not be identified or located.

Under the proposals, the copyright holder could not collect statutory damages or attorney fees from an unauthorized user, so long as that user conducted a “reasonable search” to find the copyright holder and obtain permission.

NPPA believes that the bills could imperil creators of original work, including most NPPA members. The organization's views will be shared in an eMail message to all members.

"While NPPA acknowledges all of the hard work that has gone into blunting some of the most onerous elements of the proposed legislation, there is still far too much opportunity for overreaching and abuse for commercial gain," NPPA's general legal counsel Mickey H. Osterreicher said today from Buffalo, NY.

"That gain would be to the detriment of our members. Unfortunately what began as a measure to allow librarians, historians and educators increased access to older copyrighted works has become a misguided attempt to dilute current copyright law, which is something that we as an organization of photojournalists cannot support." 

There are supporters for the House bill. A coalition of librarians, historians, educators, documentary filmmakers and anti-copyright crusaders support orphan works legislation, saying it would protect them when using such works in presentations and publications.

The current House bill includes several improvements over the legislation of two years ago, but NPPA's leaders believe that an orphan works exemption runs counter to the best interests of photojournalists and photojournalism, as well undermining America’s Constitutional and international commitments to copyright.

For several years NPPA has tracked orphan works proposals and partnered with other organizations of photographers and illustrators to fight orphan works exemptions and support copyright in general. Several associations in the Imagery Alliance, of which NPPA is a member, have worked with Berman's staff to discuss the photography industry's collective concerns.

The American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA), are also members of the Imagery Alliance and they have staff attorneys and registered lobbyists who have with Congressional staff to discuss the photograph industry's collective concerns.

In NPPA's eMail message to their members, the organization's leaders say, "Orphan works is a complex issue, but it could prove significant to the future of photojournalism as a viable profession. NPPA urges all photojournalists to include identifying metadata in their image files, continue to register their work regularly with the Copyright Office and keep their information up to date in photographers’ registries (such as NPPA’s Find-a-Photographer, PLUS, and to protect their images from being viewed as orphans.”

"We believe the only possibility of defeating these proposals is through a grass-roots effort," NPPA told its members. "Legislators and their staff take notice whenever they are contacted by their constituents. We cannot overstate the importance of members voicing their opinions. A significant response on this issue will carry far more weight with Congress than any professional group or lobby. We urge all members to participate in the process for this critical piece of legislation."

"Many of the concerns of visual artists have been addressed in the current House bill and we are grateful for the efforts that have been made on behalf of photographers, but the bill, as it is written, is still a threat to photographers," former NPPA president Alicia Wagner Calzada said today from San Antonio, TX. She led NPPA's opposition to orphan works legislation when it was proposed in 2006.

"A photographic work can be orphaned almost immediately simply by being illegally downloaded and posted multiple times. I think that photojournalists are particularly at risk for this as their images are stolen relentlessly and have immense value, both as news and as history. For this reason, orphan works legislation has the potential to severely damage photojournalists and their ability to enforce their copyright," Calzada said.

In 2006 that year's orphan works bill died in committee when its sponsor, Texas Republican Rep. Lamar Smith, withdrew the bill from consideration at the committee’s final mark-up session for the term. Smith told the committee that he didn't see any reasonable chance that the the Copyright Modernization Act of 2006 (HR 6052) would be signed into law during that year's session.

Today, NPPA offered their members these links for additional background information on orphan works:

NPPA report on introduction of 2008 orphan works bills

John Harrington warns of orphan works in his Photo Business and News Forum blog

ASMP’s analysis, including chart comparing H.R. 5889 with 2006 bill

U.S. Copyright Office Orphan Works page, including links to its report, H.R. 5889 (the Orphan Works Act of 2008), S. 2913 (the Shawn Bentley Orphan Works Act of 2008), Congressional testimony

Editorial Photographers-UK blog post on U.S. Orphan Works

Lawrence Lessig – a supporter of “free” information – on Orphan Works

The Stock Artists Alliance detailed information on Orphan Works

Illustrator Partnership’s Orphan Works Resource Page

Picture Licensing Universal System – a solution to prevent Orphan Works

The Universal Photographic Digital Imaging Guidelines (includes image metadata info)