Blue Earth
Glazer's Camera

H.R. 5889: More Harm Than Good

Photograph—May 1, 1909, labor parade in New York City. Photograph—May 1, 1909, labor parade in New York City.
© George Grantham Bain Collection

Two opposing views from photo experts on how Congress is attempting to address images with uncertain ownership

For all the upheaval that has shaken the photography industry in recent years, one of the more contentious issues is the management of so-called “orphan works” – those created compositions that have no discernible owner or definitive copyright information.

While everyone agrees that something must be decided to protect the copyright of archival images that are currently in legal limbo, consensus had yet to be reached at press time.

The U.S. Senate and House of Representatives have each introduced versions of an orphan works bill this spring. Both proposals would require the creation of an extensive public database of current works. This database would include names and locations of copyright holders, titles and descriptions of works, as well as security features enabled to protect the copyrighted works.

Photographers, however, are deeply divided over which bill would work best. The American Society of Media Photographers (ASMP) backed the House version, H.R. 5889, requiring users of orphan works to submit a “notice of use” to the U.S. Copyright Office, which would work with two private companies to run the database. The Senate bill, S. 2913, does not contain such a notification requirement. As a result, most photo groups, including ASMP, say that S. 2913 would allow too many copyrighted works to be considered orphaned and thus would encourage widespread infringement.

However, on the evening of Sept. 26, as this issue was going to press, the U.S. Senate “hotlined” and passed S. 2913 by unanimous consent. More than 70 photo groups have strongly opposed the last-minute measure.

Now that much of the focus turns to the House version, ASMP called for its members to contact their Representatives to urge them not to adopt the same language that is in the Senate bill, saying it does not contain enough notification safeguards for photographers.

Here are two views from opposite sides of the debate: one in favor of the House legislation, from ASMP’s Victor S. Perlman, and another from prominent photographer John Harrington, who dislikes both bills.

More Harm Than Good

“Orphan works” is, in fact, a necessity as society moves forward. Family albums replete with decades-old family portraits are not able to be transformed lawfully into digital versions. Not only are the photographers who produced those images in many cases long dead, but the reasonably nominal additional revenue that analog-to-digital conversion would generate is rarely of interest to the heirs of that copyright. Yet while this was the sort of relief intended, the reach of the current orphan works legislation goes exponentially beyond that which is reasonable.

Let’s be clear: No one likes the “clean” version of the orphan works act that recently passed in the Senate, and the only photographic association that supports the House version is the ASMP, an association that I have long supported and will continue to support on many other issues. Aside from PPA, which has been “cautiously optimistic” about the House version, many other organizations – the Advertising Photographers of America, Editorial Photographers, National Press Photographers Association and White House News Photographers Association – have taken the position that the current proposed legislation in both houses of Congress will have a devastating impact on photographers.

“Allowable infringements,” cases in which the copyright holder for a decades-old image cannot be found, are just as allowable to images that photographers produced yesterday. So-called “bad actors” will enter the fray and force images into an orphaned status simply by putting images into communal portals such as Flickr or other online photo-sharing sites. Then collections of “orphan-certified” images will begin to appear for sale, akin to the collections of royalty-free CDs that have so scarred the landscape over the past decade.

Consider the issue of a humanitarian book that seeks to expose the evils of abuse against women. Consider that a book on the subject, illustrating the suffering that women experience, was published, and the proceeds set to go to a charity of that nature. Now imagine someone with good intentions and not aware of the concept of copyright (and there are many in our society who fit that bill) who scans these photos and puts them out on the internet, believing that the good that would come from the broad dispersal is greater than copyright – or that the photographer wouldn’t mind.

Then, continuing to document the plight of women, suppose the photographer travels overseas, in a country where women’s rights are trampled upon, sees one of the book’s images on a billboard with a message something along the lines of, “Listen to your husband, or this will be your fate.”

This would be allowed, under the current orphan works legislation, because those images went onto the internet without any attribution and, moreover, they were not part of the orphan works databases to which each and every photographer wishing protection must submit their images. Further, this photographer could not stop that use, either. Sadly, he or she must accept whatever fees that both parties agree is fair for that use. I submit that the allowed infringer will point to images that sell for $1, and suggest that $10 is more than fair.
To suggest that the House version of this bill should be supported because it’s the best we can get – and that it will get worse if we don’t support it – is misinformed at best. In fact, the House [at press time] is considering additional language that would make the legislation fairer, yet the Senate did not move an inch while pushing through S. 2913.

Your livelihood may be harmed unless you engage in this process. I urge all serious photographers to get involved and read the bills, and then, within the context of the language, imagine the worst-case scenario that would be allowed if they were enacted. But before you decide, consider the bad actors who will exploit the bill’s language and any loopholes to avoid paying for your images.