 Mark Feldstein |
WHO SHOULD CARE AND WHY ?? The current proposed legislation entitled "The Orphan Works Act", Senate Bill S2913 is neither about taking pretty photographs nor does it merely impact professional photographers. It potentially, adversely, affects ALL artists from EVERY discipline whose work has ever been afforded the constitutionally provided right of copyright protection. That's right kids: Copyright is a federal creature conferred upon us by the U.S. Constitution. So, every artist, indeed every person with a camera who wants to protect their work from unauthorized use, with or without payment and who, wants to ensure they receive fair and proper credit for their work, is adversely impacted by this proposed legislation. For those who might be interested, here's a link to a quick and easy tutorial at ASMP on the copyright process. Please look at it !!! ASMP is not the only professional organization against this bill. So too is Editorial Photographers, Illustrators, Advertising Photographers of America at http://www.apanational.com/i4a/pages/index.cfm?pageid=3480, This is not about whether BP-ers can enter contests, who won what prize or why, or the usual day-to-day issues we address around here. It's about your own individual, constitutionally PROPERTY RIGHT conferred upon you to use your work as YOU see fit and as you dictate, not some publisher, advertising agency, music publisher, CD producer, television show, or anyone else for that matter, merely because they can't seem to locate you to ASK permission. If this passes, in its present form, they can use your work with or without paying just compensation or even giving you the opportunity to ask for compensation for YOUR PROTECTED WORK. Merely because they exercised a reasonable good faith belief that you'd abandoned your copyright by not appearing, or reappearing, in a directory of sorts. To paraphrase the American Society of Magazine Photographers, ASMP.org: "Orphan works” are intellectual property — photos, songs, manuscripts, movie clips, etc. — that appear to be protected by copyright but whose copyright owner cannot be located. In other words, the work says it's right-protected (copyrighted) with proper notice and date, but the owner isn't either in say the local telephone book or some kind of registry of artists or photographers whether online or printed. Testimony presented to Congress has indicated that artists that can't be located is a real problem for publishers, museums, scholars and others who wish to use the works in legitimate ways. Unfortunately, the solutions proposed in 2006 by the Copyright Office and the House Judiciary Committee, HR6052, were particularly harmful to visual artists such as photographers, illustrators and textile designers. That bill, fell by the wayside and gave rise to a newer version congress is trying to push through." IMO, this is an attempt by some in Congress to erode your constitutional rights. Copyright is intellectual property. Until this latest version, right-protection was afforded every artist who took the time and made the effort to properly secure those protections afforded to them under the intellectual property laws. It's a simple process that's been discussed here many times. You don't need to get angry, nor do your passions need to rise to the level of some of the pros here, including me, who have vowed to fight this legislation. All you need to do is to take the law into your own jaw (so-to-speak) and send a quick e-mail to your U.S. Senator and Congress Person, asking them to vote against supporting any and all "orphan works legislation". The NPPA link offers some sample notes/letters you can send your reps about the issue. You don't have to be a member of ASMP or any other professional organization to review this material. It does affect everyone. Take a look: http://asmp.org/audio/index.php See also the National Press Photographers Association at http://www.nppa.org/news_and_events/news/2008/05/orphan03.html Sound your own horn, take a minute and tell your reps you don't support this kind of legislation. It's just another shot at artists and when you read the proposed legislation, at one of the links below, you'll see exactly how transparent, unilateral, and harmful this legislation really is. AND it's in danger of gathering more support and passing. SPEAK OUT against this. You've got everything to gain from doing that and virtually nothing to lose.
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Todd Bennett |
I couldn't have said it better myself Mark. Not much I can add to that explanation. It seems as though the people here are more worried about the contest and it's results, EFPs, complaining about the way the contest is run, etc. and either don't care about this bill or are igorant to the potential impact that the bill could have for all photogs.
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Mary Iacofano |
Mark, Thanks for posting the links. Great reading. Thanks,
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Todd Bennett |
What's amazing Mary is the thread I started about this, only 4 people responded.
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Mary Iacofano |
Let's get involved! I have never sold a photograph, and am only a "pro" in my dreams. My point is this may effect even us aspiring photographers, not only the pros. By going to one of the links above in Mark's post, I was able to send both Fl Senators a letter opposing this bill. It was done in the time it takes me to check my e-mail or this forum. They have the e-mail all made up, with a text area that you can add to. They also have the phone numbers to call with a pre written dialog. Tell your photography friends.
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- Carlton Ward Contact Carlton Ward Carlton Ward's Gallery |
Right On Mark, I posted about this a couple of months ago and received a few responces & I have fought and will continue to fight this legislation. I have a lawyer friend in SF that does copyright law in the music business. I will e-mail him and ask if he has other info regarding the Orphan Works Act. He may have a different insight. I have never seen an administration so against people. They are even trying to make this legislation effective world-wide with or without other countries approval. So if it passes, our gov't will not listen to claims filed by someone in Peru or Holland about some corporation ripping off their work as long as they claim to have done a "resonable search" (whatever that really means) to make contact with the artist....
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Marianne Fortin |
I took a look at the Petition that Todd mentioned in his previous thread on the subject: http://www.PetitionOnline.com/Stop2913/ It appears that a large number of signatories are from overseas. There isn't a specific list of countries, but the names and some of the comments make them appear to be from outside the USA. Obviously, I can see that they are also concerned about this issue because it could affect them. The problem is that Congress and the lawmakers are only going to concern themselves with USA persons (voters), so might ignore the petition because they can't tell how many of the signatories are US citizens. BTW just in case anyone thinks this Bill doesn't affect them - anyone who posts an image on the web could have their work stolen and have no legal recourse to recover damages.
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BetterPhoto Member |
AAAMMMEEENNN BROTHER! CAN YOU SSSEEE THE LIGHT?????
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David A. Bliss |
http://maradydd.livejournal.com/374886.html Radio Free Meredith
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Mark Feldstein |
Thanks guys ! The focus of this and the other posting on the Orphan Works Act is currently the Senate version which is apparently closer to getting through than the House version. In my view, both threaten copyright protection for everyone, not just pros, not just non-pros. Take the time to drop a note on your senator and even your congressional rep. Any benefits afforded by either version of these bills are strictly illusory, smoke and mirrors and will benefit big business like publishers who for want of a better word, will just attempt to "steal" your work. That brown scratchy stuff being slowly pulled over your eyes is wool. Don't let them silently get away with this.
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Todd Bennett |
Mark, Okay, you beat me. You got 5 people to respond to your thread. Unbelievable!
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Mark Feldstein |
Hmmmmmmmmmmmmmm, maybe it's more than apathy. Maybe people here really just don't care about their right in the U.S. to protect their work from being stolen and would prefer to sit on their rights, errrr, so-to-speak, until they go quietly into that dark night and just slip away. At least some of us are trying. Thanks to those that do. I suppose that's something anyway.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
This isn't a topic people are familiar with until it's something that they get directly involved in. Like the first they get a chance to sell a picture, they find one of theirs on flickr. Then they think about it. You probably won't get more input around here until there are more stories like the girl's picture from a picnic or car wash that ended up in a phone company add, I believe it was. Kind of ironic to me, but this is an issue that micro stock companies should worry much about.
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David A. Bliss |
Ok, I'll finally bite. How is this something that micro stock companies should worry about?
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/08/AR2008010804626.html Check that link to the Washington Post article about the stolen photos used on FOX broadcast and a Virgin Mobile ad. You can also see the size of the picture Virgin made from the photo stolen from flickr in the slide show. The motivation for the model of microstock is the same for why jobs went to China, India, and the like. Severely cut the labor cost, if you look at the photographer as labor. So, with the internet you can use an avenue for millions of people to provide images with good probability just based on the numbers that the internet can provide, that you'll get good enough images, and the providers of those images are willing to do it at such a drastically reduced price. So, when you look at the quality of poster that Virgin was able to get from a Flickr photo, it makes you think that the common belief that an uploaded photo being too small to do anything with isn't true if you have the capabilities that a large corporation like Virgin has. Much better stuff that can do more than what a pc can do with interpolating with photoshop. So, with all the images out there, that's an opportunity to under cut the very people who's marketing model is under cutting. If a drastic under cut price for a photo is so appealing, how appealing is a free one?
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David A. Bliss |
Digging through your politically charged response, I believe you are saying that companies will stop using stock agencies and simply steal the images?
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- Elida Gutierrez Contact Elida Gutierrez Elida Gutierrez's Gallery |
That's not fair!!!!
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Todd Bennett |
David, I don't see how Greg's post is "politically charged." I guess ignorance is "Bliss?"
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David A. Bliss |
Todd, do you have anything useful or original to say? Or did you just want to jump in here and use my name in an old and tired pun that is meant to be more a personal attack than an addition to the conversation?
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Todd Bennett |
Well bud, Try this: http://www.betterphoto.com/forms/QnAdetail.php?threadID=32487. I've added what I feel is necessary. Now, you're original post here seems to be counter-productive and in disagreement with Mark's post. First off the Dan Heller link didn't work. The other link is to a blog from somebody that obviously doesn't see the severity of this issue. She argues some misconceptions; but, fails to address the real issue here which is the ability to use photos without "due diligence" to find who owns the copyright. She also fails to address to the issue of the rights of the photog once they try to get their due when they find a stolen work. It might be an old and tired pun; but, I think it fits if you don't think this is a major problem for all photogs.
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David A. Bliss |
Todd, my original post was counter productive and in disagreement with Mark. As much as I respect and normally agree with Mark, I didn't realize that was a requirement to post here. Have you read HR-5889? It addresses very clearly the rights of the photograher if their work has been used as an orphan work. `(B) EXCEPTION- Subparagraph (A) does not apply if, after receiving notice of the claim for infringement and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer-- `(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or `(ii) fails to render payment of reasonable compensation in a reasonably timely manner. It also addresses due diligence. `(1) MATERIALS AND STANDARDS- The term `materials and standards' includes-- `(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners; `(B) sources of copyright ownership information reasonably available to users, including private databases; `(C) industry practices and guidelines of associations and organizations; `(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and `(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.
You might not agree with me, but I guarantee you will have a hard time proving me ignorant.
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David A. Bliss |
Ok, I will now agree to ignorance, as I am discussing HR 5889 and Mark was talking about S 2913. S 2913, while out of committee, does not have a chance of passing in its current wording. If this bill is ever actually going to get through both houses it will be closer to the House version. The house version has included wording that more closely regulates what is due diligence, and what compensation is due the copyright holder.
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Todd Bennett |
I never said it was a requirement to post here. I was simply pointing out the answer to your question: "Todd, do you have anything useful or original to say?" I have read both versions of the bill before committee in the house and senate. I, like the ASMP, don't agree with either version; but the house version is a bit more acceptable. If you can't see where both of these bills will lead, you are "ignorant" in your vision of this bill.
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David A. Bliss |
From what I read, the ASMP supports the house bill. "ASMP believes that, on balance, the House version is a bill that photographers can support." Is that not correct?
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Todd Bennett |
I believe that is correct; but, I honestly don't think that is a full endorsement of the house version. They would like to see better verbiage to protect the copyright owner and allow for more penalties in the event one's work is found to be stolen and make it more difficult to use works where the copyright owner can't be found. Check your email.
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Mark Feldstein |
Let's not get too far off the track here gang. The fact that Senate Bill 2913 IS out of committee should give you a sense of urgency to do something to prevent its passage, assuming you're so inclined. After that, I'd study up on the House version and offer your reps your comments about that one as well. I think you'll also find, without putting the Senate OR House bills under the microscope, that the due diligence provisions are illusory and the threshold test for that is minimal at best. That's the problem with the entire concept of Orphan Works. How hard does someone have to work to meet the due diligence requirement and how steep does the penalty curve fall off after the bare minimum requirements are actually met. Then to make it easier for artists to access the federal courts to sue is also illusory because they have to know the work has been infringed and if they know that, the question is how do they know. If they don't know the work has been infringed, then the issue of judicial access is moot because they don't need it. If they DO know the work has been stolen, then why couldn't they have done something to prevent it from being stolen in the first place. Read the words AND listen to the music here.
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Todd Bennett |
In essence what they need to do is enforce the existing laws. If it ain't broke, don't fix it.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
Todd, he didn't like the analogies using China and India. Plus, I do think he doesn't use some real world sensibilities about what will happen with the leeway the new bill can provide. As Mark pointed out about illusory wording. Blaming a new intern for nabbing an image will be a new catch phrase.
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David A. Bliss |
Actually, I couldn’t care less about your comments regarding India and China. They are irrelevant. It’s a classic political tactic; bringing up a hot topic and trying to use it to invoke an emotional response in regards to the topic being discussed. It holds no bearing to the point you are trying to make. Blaming an intern for nabbing an image has absolutely nothing to do with orphan works. I was very well aware of the pug story before you posted the link. Orphan works would not even come into play. (I am using intern for the examples simply because you did, though the intern excuse was not used for the pug picture). This assumes HR 5889 and not S2913. Currently: Now, for giggles, let’s say they claim orphan works. First Case; Second Case: I didn’t see it in the article, but I am under the assumption that the pug picture was not registered for copyright, so she wouldn’t be eligible for statutory damages regardless. Real world sensibilities tell me that anyone (or any company) who is going to use an image without permission is going to do so no matter what, and is unlikely to take the time to create a false paper trail to try and claim orphan works later, which means that status quo procedure for copyright infringement would be in play. Professional photographers would have even less to worry about, as it should be easy to show that very little research would have been needed to track down the copyright holder. Amateur photographers, or even people posting snapshots, probably have more to worry about, but as all of your examples show, their images are being used now without permission, and the only recourse is for them to actually catch the infringer. Again, I don’t see the infringer taking the time to follow the due diligence rules, or file a notice of use with the copyright office. While I understand that there is some ambiguity in “due diligence,” it is laid out enough (in HR 5889) that more than a cursory search “of a desk drawer” is required to be able to claim orphan work. Eventually a bill is going to pass. Instead of insulting, bullying, and threatening those who disagree with you, you should instead be putting your energies into helping create a bill that will be agreeable to all sides. You shouldn’t simply sign a petition because you read somewhere that you will lose your copyright.
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Todd Bennett |
David, Nobody has bullied you and certainly nobody has threatened you. Now, you may have taken my comment as an insult; but, it wasn't. It was actually said tongue in cheek. Merriam Webster defines ignorance as "the state or fact of being ignorant : lack of knowledge, education, or awareness." Maybe I should have used a different term; but, in this case your "lack of awareness" of where this could actually lead is what I was referring to. By loosening up the guidelines for these types of works, they are potentially creating a Pandora's box for the entire photography community. Not to mention lining the pockets of the attorneys because of the increase in legal proceedings. I honestly cannot imagine how you don't see where all this could lead David. Mark gave excellent examples in his initial post as to the things that could happen with this. You keep referring to HR 5889; but, as you even said, Mark's post is mainly about the senate version. The bottom line is, and the points you seem to be missing are that the senate version is making it easier to use a copyrighted work and they are trying to limit the amount of damages a person can receive in the event they find a work stolen. And, the House version may be more acceptable; but, does that mean that is what we really want? The ASMP, as you said, states that, "on balance, the House version is a bill that photographers can support." The operative words there are "on balance." That doesn't sound like a "lets run out and get this bill signed today" kind of endorsement to me.
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David A. Bliss |
There are points that keep being made that, when I read the language, don’t add up to me. Work doesn’t have to have a copyright symbol. While it is a good idea, even now, it is not required under either bill. The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I) Also, there is no limit for the recourse afforded to copyright holders whose work has been stolen. Even if an infringer is able to prove orphan work in a court of law, they are still required to pay reasonable compensation. A professional photographer will have a history of payments which would be used to determine reasonable compensation. A person posting snapshots on a photo sharing site has probably not registered the copyright, so they are not entitled to statutory damages anyway. Neither of these bills changes the way copyright works. They don’t “take away” copyright or copyright protection. It can be argued that the Senate version creates more of an ambiguous loophole, but in the end it will still be up to a judge to make that decision. I don’t see that the “due diligence provisions are illusory and the threshold test for that is minimal at best,” particularly in the house version. (A) the records of the Copyright Office that are relevant to identifying and locating copyright owners; (B) sources of copyright ownership information reasonably available to users, including private databases; (C) industry practices and guidelines of associations and organizations; (D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and C and E are particularly noteworthy. C to me would include input from the very organizations to which we belong. With E I see image recognition software being added to search engines like google, making orphan claims even more difficult. It seems to me that these could actually improve our chances of being awarded statutory damages. In court, if the infringer cannot produce documentation of due diligence, or has not filed a notice with the Copyright office, then I doubt the infringer could prove were “not aware and had no reason to believe that his or her acts constituted an infringement of copyright" (Title 17, Section 504)
http://www.copyright.gov/help/faq/faq-fairuse.html Scroll all the way to the bottom for this FAQ. These some of the points I have taken away from my research. I am always open to a good debate, and love to hear other peoples logical arguments.
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Todd Bennett |
David, I honestly do understand your points; but, I also understand the way the legal system works. I've seen it in action. It doesn't take a lot to find a loophole and poof, all your hard work is gone with the bang of a gavel. And I do agree that a new law is coming soon. The senate version will not make it through. I don't think the house version will make it through either, without some changes. Just because we know a law is going to be enacted, doesn't mean we can't fight it to the end and possibly make changes that will benefit all photogs. The thing about all this is, is to contact your respective senators and congressmen to make sure they know how you feel. Load them up with emails and letters so this sticks in their heads.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
Well, I wasn't talking about the pug picture, I was talking about the other parts of the article. And if you didn't care about the India/China analogies, why say it's politically charged in the first place? Especially since it wasn't about politics to begin with.
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Todd Bennett |
Does, anyone else have a comment on this?
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Mark Feldstein |
OR, if not a comment, has anyone else thought to contact their Senator, sign a petition one way or the other, written a letter, or in any other way tried to do something about this legislation? If so, what have you done? I'm just really curious to see if people here understand this issue, what's at stake here and what they're doing about it, if anything. Or whether the majority just think it won't affect them in any way.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
#6280 on a petition. Or it could've been 6820.
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Todd Bennett |
Thanks Greg for signing. I don't think most of the people here realize the implications. They seem to be too worried about the change in the "photo competition!"
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David A. Bliss |
Time to bump this thread. As Mark said, this is an important issue, and everyone should read the bill and educate themselves. While Mark and I might see things a little differently on this, we both agree that inaction is unacceptable.
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Mark Feldstein |
Absolutely David !!! While we still get a chance to express our views to our elected representatives, SPEAK UP !! And if Todd and/or Greg would repost the links to petitions for electronic signature, I for one would appreciate that. And whether BP members realize it or not, this is a significant issue (usage, image theft, copyright, and infringement) that comes up here quite often. DON'T JUST SIT THERE, DO SOMETHING !!!! You have significant rights at stake here. Don't take this lightly.
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Todd Bennett |
http://www.PetitionOnline.com/Stop2913/ Ask and yee shall receive! I have also been getting some emails from a pro aerial photographers list I am on where the ASMP, I believe it is, says that now they are trying fast track the bill through and stating a vote on it could come at any time. From what I am reading the house and the senate versions have some different wording in them. Both version have to say the same thing before it goes to W for his signature and can be passed into law.
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Mark Feldstein |
And please also be sure to take a look at Janis Herd's BP thread and related comments there on how much this can cost you and why: http://www.betterphoto.com/forms/QnAdetail.php?threadID=32798
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Mark Feldstein |
I'd really like to hear Jim Miotke's opinion on this issue, both as another photojournalist and the BP site operator. C'mon Jim, let's hear from you. I think your opinion on this should matter both here and elsewhere. Mark
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Mark Feldstein |
Here's another apparent problem at BP that allows copying of images to the desktop. This was brought to our attention courtesy of Derek Dafoe and I think this is another issue Jim Miotke should be looking into. http://www.betterphoto.com/forms/QnAdetail.php?threadID=32810 I've also cited to it in Janis' thread on what the Orphans Act can cost you.
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Mark Feldstein |
bump bump.
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Todd Bennett |
Bump!
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