"Orphan Works" Bill Dies In Committee

Sep 28, 2006

WASHINGTON, DC – The “Orphan Works” bill appears to have died in Congressional committee this week when its sponsor, Texas Republican Representative Lamar Smith, withdrew the bill from consideration Wednesday at the committee’s final mark-up session for this term.

Smith told the committee that he did not see any reasonable chance that the the Copyright Modernization Act of 2006 (HR 6052) would be signed into law during the current Congress, so he plans to introduce it as a new bill when Congress convenes again next year.

The National Press Photographers Association and other media groups have opposed the bill, believing that it would undermine legal options for protecting copyrights. The changes were proposed in an Orphan Works report issued last year by the U.S. Copyright Office.

The Orphan Works Act would change the law so that someone who wants to use a copyrighted work, but is unable to find the copyright owner after a "reasonable search," could use it without fear of paying significant damages. Under current law, someone who uses a copyrighted work without first obtaining permission is liable for damages even if they tried but could not locate the copyright owner. If the work is registered with the Copyright Office before such an infringement, those damages can total $150,000 per violation, plus attorney and court costs.

In material NPPA prepared in order to inform photographers about Orphan Works in July 2006, then-president Alicia Wagner Calzada wrote, “The definition of an orphan work in the current legislation is too broad and the remedies for photographers are too small – and sometimes non-existent – if an infringer claims a work is orphaned. The bill grants exceptions to a broad range of users, including non-profit and educational clients, who are key customers for editorial stock photography. Ambiguous language regarding user responsibilities and creator remedies could lead to expensive legal wrangling in federal court. Yet the bill removes the hope of collecting punitive damages and attorneys’ fees, provisions in current law that allow photographers to afford such litigation – or better yet, avoid it.

“Visual works – especially news photographs, which are often widely distributed and copied, frequented with credits removed – present a particular challenge when they are orphaned. Without the creator’s name or other source information to begin with, there is almost no way to determine their ownership. Image search technology is still young, and the Copyright Office has failed to take the first step toward making this information available by posting registered images online.”

In addition to NPPA, the Orphan Works Act was opposed by the Advertising Photographers of America, the American Society of Media Photographers, Professional Photographers of America, the Association of Photographers, Editorial Photographers, and the Stock Artists Alliance.

“Representative Smith’s move of tying the Orphan Works legislation to a digital music licensing bill appears to have created the additional opposition needed to stop the bill in this Congress,” ASMP’s executive director Eugene Mopsik said. “This battle has been won, but the war is not over. We will be watching closely to be sure that the bill does not suddenly reappear in any late-fall, ‘lame duck’ session. And we will start drafting our own version of a new bill, favorable to photographers and artists, for possible introduction in the next Congress.”

More information about Orphan Works can be found here.