Professional Photographers of America Fights for Photographer's Copyrights
March 19, 2014
Photography Association Offers Input on Orphan Works
WASHINGTON D.C. – After years of progressive copyright infringement, legislation in favor of photographers might be on the way.
Last week, Professional Photographers of America (PPA) lent a voice to the photography industry during an Orphan Works Roundtable on Capitol Hill.
Orphan works are loosely defined as copyright-protected material where the copyright owner is unknown or cannot be located. The vast majority of these "orphans" are photographs and other works of visual arts. How the public can make use of these "orphans" has been debated on Capitol Hill for almost a decade.
PPA has been involved in the orphan works debate since the Copyright Office began its initial study of the issue in 2005. PPA has testified before Congress over the years, but the closest an orphan works bill came to being enacted was in 2009 when the "Shawn Bentley Orphan Works Act" was passed by the Senate.
However, the bill did not make it out of the House Judiciary Committee, which has jurisdiction over copyright matters. Since then there was little activity on this front until the issue was incorporated into the Register of Copyright's "Priorities and Special Projects" outline.
Maria Matthews, manager of PPA's copyright and government affairs department, sat on two panels at last week's Orphan Works Roundtable. The purpose of the two-day roundtable, hosted by the U.S. Copyright Office, was to gather insight on potential legislative solutions and discuss orphan works in the context of new technology and mass digitization efforts.
In reframing the orphan works debate, the Copyright Office is considering giving photographs and other works of visual arts special treatment as they make their recommendations to Congress. This special treatment could exclude photographs from the types of works that can be considered "orphaned." This will help raise the bar for determining when a photograph is an "orphan."
"This has the potential to be great news for photographers," said Matthews. "We appreciate the Copyright Office's recognition of the unique nature of photographs and photographers and agree that exempting photographs from orphan works legislation makes sense. We hope this facilitates progress toward meaningful legislation."
This new way of thinking stems from the fact that the very technologies that have helped advance the photography profession often separate photographers from their images. This refers specifically to when metadata and watermarks get stripped away (either intentionally or accidentally) as files are transferred, posted online or cropped for publication.
There has also been some progress to ensure that copyright owners whose works were designated "orphan works" are properly compensated when they come forward following its use. Early versions of orphan works bills included a great deal of protection for the would-be infringer, preventing the copyright owner from collecting any form of compensation. But there is now some movement in favor of language to protect copyright owners as well.
Many representatives from the user community have expressed interest in incorporating language that would allow copyright owners to receive reasonable compensation, set according to market value. But according to Matthews, this wouldn't be enough.
"Any quest for compensation has to be applied in conjunction with a small claims process that makes it feasible for copyright owners to defend their rights," she said. "Being able to pursue an infringement outside the federal court system will take into account the burden and expense of waging a federal lawsuit. This would ultimately prevent a photographer from collecting even the most modest amount of money."
The mass digitization of copyrighted works, like photographs, was also a major topic of discussion. An argument that was repeated throughout both days centered on the benefit to the public good. While PPA is in favor of image-sharing, it must be done so with copyrights and compensation in mind.
"If all creations are inherently free to use there's no incentive for creators to continue to create," said Matthews. "These are treasured memories and mantle pieces that could cease to exist if proper steps aren't taken. Professional photographers must be properly compensated and protected."
The ultimate goal of this roundtable and any future "fact finding" sessions, will be to issue an updated report on the state of orphaned works, including what aspects should be legislated and what aspects should be left to administrative rules making.
In addition to having the photography world's only copyright and government affairs department, PPA provides a wealth of resources for photographers online, including sample contracts and model releases. For more information, visit ppa.com/copyright.
Professional Photographers of America (PPA) is the largest international non-profit association created by professional photographers, for professional photographers. Almost as long-lived as photography itself, PPA has roots that date back to 1869. It assists close to 27,000 members through protection, education and resources for their continued success. See how PPA helps photographers be more at ppa.com.