Statement on Orphan Works: PPA Cautious but Optimistic

Noting substantial improvements over previous orphan works legislation, Professional Photographers of America (PPA) remains cautious yet optimistic about two newly proposed orphan works bills.

The two separate bills were introduced April 24, 2008—one in the House of Representatives and the other in the Senate. While PPA maintains a cautious concern about these bills, analysis indicates that they are significantly improved compared to previous orphan works legislation.

Orphan works, loosely defined as copyright-protected material where the copyright owner is unknown or cannot be located, has been debated on Capitol Hill for several years.  PPA was called on to testify about orphan works at congressional hearings two years ago and has since worked tirelessly to mitigate what seemed destined to be a bad situation for photographers.

One of the factors making the going so tough for photographers is the very broad public and congressional support for orphan works legislation.  There are perhaps millions of photographs owned by museums, libraries and archives that cannot be legally used because the owners cannot be located. Similar problems exist when a consumer can no longer locate his or her portrait or wedding photographer.

The pressure for significant, broad-based change has been mounting against photographers for a number of years—even very pro-copyright members of Congress have vowed that orphan works legislation would be passed.  

Despite its work on Capitol Hill, PPA was not sure what form the new legislation would take. Certainly, there are improvements which we think can, and should, be included in the proposals.

Generally, though, it is our opinion that the newly proposed bills are significantly more favorable than the legislation proposed two years ago. More importantly, based on expected changes in the House IP Subcommittee on Intellectual Property, we believe that if the current legislation is not approved, we can expect much less favorable legislation in 2009.

Under these proposed bills, the requirements to become an orphan work and claim protection from copyright infringement are stringent and narrow. Key provisions include:

  • A photograph without a copyright notice would not automatically qualify as an orphan work.
  • The proposed bills require a “diligent, good faith” search based on industry best practices as catalogued by the Copyright Office. This includes searching databases certified by the Copyright Office in addition to the Office’s own records.
  • Failure to meet the requirements of a diligent search, or adhere to the usage requirements, will void any orphan works protection.
  • If the copyright owner of an orphan work photograph emerges, the user(s) of that photograph would have to provide reasonable compensation. Failure to negotiate and provide that payment in a timely manner voids orphan works protections.
  • A “safe harbor” provision will protect nonprofit institutions’ use of qualifying orphan works (such nonprofits include museums, libraries and public archives), but this provision is very narrow and applies only to non-commercial uses.
  • Orphan work protection is excluded for “useful articles” such as mugs, T-shirts, and other similar trinkets in the House version.
  • The House version also requires that a user file a “Notice of Use” along with documentation of the diligent search.

Two other helpful provisions are included, due in part to PPA’s lobbying:

  • Both bills task the Copyright Office with conducting a study on a small copyright claims alternative dispute resolution system and submitting its findings to Congress within two years of the bill’s enactment. During the debate two years ago, PPA argued aggressively for a small-claims-type process like this, which would allow photographers to pursue reasonable compensation without the expense of filing a federal court lawsuit. We continue to believe that there is a tremendous need for photographers to be able to seek redress for infringements outside of the federal court system.
  • Both bills mandate a study by the U.S. Comptroller into the deposit requirements of the current copyright registration process. PPA is pleased with this, as we have argued for a number of years that the current process—specifically the deposit requirement—discriminates against photographers. We believe this study is a direct nod to photographers and an attempt by the writers to make otherwise contrary legislation more palatable.

Both versions of the bill set an effective date of January 1, 2009, but carve out an exception for photographs and other visual material. The House version sets the effective date for visual arts at January 1, 2013 or after two searchable databases receive Copyright Office certification. The Senate version sets the date at 2011.

We feel certain that orphan works legislation is going to pass. It has been our position that photographers should work within the system to effect the most positive legislation possible.

Expecting a worse fate if we wait until 2009, and recognizing that it is possible to gain some small improvements yet, PPA is generally pleased with the proposed bills’ direction. We are grateful for significant improvements made on behalf of photographers and artists. We stand ready to support what we hope will be the very best legislation possible—allowing us to prepare for the future copyright fights that are sure to come. To view a complete copy of the proposed bills, go to:

Orphan Works Act of 2008 (H.R. 5889)

Shawn Bentley Orphan Works Act of 2008 (S.B. 2913)

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