A potentially disastrous bill is working its way through the U.S. Congress regarding Orphan Works, those works whose copyright ownership cannot be found. To let our collective voice be heard loud and clear, it is imperative that action be taken by sending as many letters as possible to members of Congress in both the House and Senate and to members of the House and Senate Judiciary Committees.
We strongly encourage you to visit the ASMP website for more information on the Orphan Works issue. Our good friends at ASMP have taken the lead on this and have provided excellent resources. The sample letter included with this message is available on the website along with contact info to legislators. You can copy and paste the letter onto your letterhead, then FAX to your members of Congress.
The U.S. Copyright Office issued its report on Orphan Works a short time ago, and contained proposed language for an amendment to the Copyright Act. This proposal is now being fast-tracked in Washington with a good chance of passage before the end of this Session. ASMP has formed a coalition of organizations, represented by Victor Perlman, in connection with Orphan Works that includes the Graphic Artists Guild, the National Press Photographers Association, the Stock Artists Alliance, Advertising Photographers of America, Editorial Photographers, the Illustrators Partnership of America (with approximately 40 other organizations), and the Picture Archive Council of America (with General Counsel Nancy Wolff.)
We thank ASMP for their leadership on this critical issue, affecting all photographers and creatives whose work is protected by copyright laws. Please take the time to review the information and submit your letter (by FAX) to the appropriate members of Congress. To be effective, we must work together -- this is an appeal for your participation.
Thank you in advance for your help!
George Fulton, APA President Constance Evans, APA National Executive Director
Please personalize this draft letter
Re: Orphan Works Copyright Legislation
Dear (Senator or Representative) _____________:
(Write your own opening sentence). The amendment to the Copyright Act proposed by the U.S. Copyright Office is a disaster in the making for independent photographers and other independent creators of visual works. We are different from all other copyright owners because, unlike other creators, it is the exception rather than the rule that our images are published with any kind of credit line, copyright notice or other form of attribution. Credits are unusual in print publications, and are virtually non-existent on the Internet. Without names attached to them, most published images will likely become Orphan Works.
The proposal for dealing with Orphan Works is based on an erroneous assumption on the part of the Copyright Office: See footnote 378 on page 115 of Copyright Office report, "…The likelihood of statutory damages or attorneys' fees being awarded in an orphan works case is probably low, given that for those remedies to be available, the work must have been registered prior to infringement, see 17 U.S.C. section 412, and if a work is registered it is unlikely that the copyright owner is unlocatable through a diligent search." This simply is not true for published works of visual images. Without credit lines or other attribution, there is no way to know a photographer's name in most cases. Without a name, there is no way to search the Copyright Office records for a photograph.
As written, the proposal might work for copyright owners of other types of works, but for independent creators of visual images, it will end up converting massive numbers of images, and probably the majority of published images, to Orphan Work status.
The situation is made even worse, with recovery for infringements of Orphan Works limited to reasonable compensation with no possibility of receiving attorneys' fees, leaving independent photographers and illustrators with no practical way of receiving compensation from a user who refuses to pay. It would simply cost more to sue than the possible compensation at issue.
I implore you to fix the proposed Orphan Works legislation so that it will not deprive photographers of protection under the Copyright Act. At a minimum, I ask that you please include a provision that will allow statutory damages and recovery of attorney's fees, when a user of an apparent Orphan Work refuses to pay after receiving a demand from the copyright owner. If not changed, this legislation may well put me out of business.
Thank you for your time, attention and, I hope, support.