NPPA Objects To "Orphan Works" Copyright Proposal

Feb 27, 2006

DURHAM, NC – Alicia Wagner Calzada, president of the National Press Photographers Association, said today that the NPPA "views with concern proposals being discussed by U.S. lawmakers that would undermine legal options for protecting copyrights, changes that were proposed in an Orphan Works report issued recently by the U.S. Copyright Office."

The Orphan Works law proposed by the U.S. Copyright Office would change the Copyright Act 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 damages. Under the 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.

Even though the proposed Orphan Works legislation is still in the early stages, Calzada urges NPPA members to act now and to write to Senators and Representatives immediately to voice a strong objection.

"Proposals in the Orphan Works report would make it easier for people to use your images without your permission, and make it harder for you to collect the money you're owed when they do," Calzada said. "This should concern photojournalists, because many published images are copied and recopied without permission. If credits are removed in this process, making it difficult to identify the copyright holder, the image could be considered 'orphaned.'"

NPPA is among a growing list of organizations representing photographers and other visual artists in calling for their members to speak out against the proposed Orphan Works legislation.

A sample letter of objection is part of a Web resource page that's been prepared by the American Society of Media Photographers as part of the effort to defeat the Orphan Works legislation. The resource page explains many of the problems accompanying the legislation. It includes links to the Copyright Office's report, fax numbers for all of the Judiciary Committee members, suggestions to help speed drafting your own letter of objection, a sample letter, and tools for finding contact information for Senators and Representatives.

ASMP general counsel Victor S. Perlman, writing about what's wrong with the Orphan Works legislation, said, "The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn't have a published credit. Yes, people have to contact publishers to try to identify and locate you, but if that doesn't produce your name and/or contact information for any reason, they may be entitled to a free, or almost free, pass."

On February 23 the annual American Bar Association Intellectual Property Section Update was presented by the U.S. Copyright Office and ASMP executive director Eugene Mopsik attended. Mopsik reports that Jule Sigall, associate register for policy and international affairs for the U.S. Copyright Office, who is also the principal author of the Orphan Works report, was in attendance along with other top officials, and an overview of the Copyright Office's activities from the preceding year was given.

"There was much discussion of Orphan Works and the various assumptions made that led to the current recommendations," Mopsik wrote. "It is ASMP's conclusion that the current report and recommendations have accommodated the needs of the library, museum, and university communities, in addition to commercial users, while ignoring the special needs of photographers, graphic artists, and illustrators.

"While historically there has been a sensitivity to the needs of creators within the Copyright Office, this report signals a shift and reveals a lack of understanding of the particular workings of the commercial art and photography marketplace. It further reveals pressures being brought to bear by those who find copyright an outdated and restrictive covenant."

Mopsik concluded, "There is still an opportunity to exert influence and try to improve this proposal before it becomes the law of the land. Be sure to write to your elected representatives!"

Other organizations joining in the opposition of the Orphan Works proposal include the Graphic Artists Guild, the Stock Artists Alliance, Advertising Photographers of America, Editorial Photographers, the Picture Archive Council of America, and the Illustrators Partnership of America (which carries with it approximately 40 other organizations). Tonight, overseas organizations including the Association of Photographers Ltd. (AOP), the British Association of Picture Libraries and Agencies (BAPLA), the British Institute of Professional Photography, and other imaging groups from the U.K. have added their support to the opposition.

"Please contact your congressional representatives on this issue," Calzada repeated today. "The protection of copyright is critical to the future of our industry."