Photo Attorney

Mar 1, 2006

Proposed Change to Copyright Law May Affect Photographer's Rights

The purpose of copyright law is to benefit the public. Congress believes that protecting an artist's work from unauthorized copying for a certain time will encourage artists to create. After the protection is removed, all are entitled to enjoy the artist's creation.

But what happens when someone wants to use a work and can't tell whom it belongs to or whether it has passed into the public domain? Perhaps you want additional copies of a photograph of your great-grandmother. There's no studio name on the photo or the studio has gone out of business with no forwarding address. Maybe you want to photograph a sculpture and the contact information has faded and the sculptor's records can't be found.

To address this situation, the U.S. Copyright Office completed a study of "orphan works" - copyrighted works whose owners may be impossible to identify and locate - and submitted its report to the Senate Judiciary Committee on January 31, 2006. The primary goal of the Orphan Works proposal was "to make it more likely that a user can find the relevant owner in the first instance, and negotiate a voluntary agreement over permission and payment, if appropriate, for the intended use of the work." It appears as though the goal has been lost in the process.

Several professional photography groups such as the ASMP, PPA and EP are watching this proposal closely because, as it stands, it negatively affects photographers' rights. While some exception for use of an orphan work is necessary, the proposal makes it too easy for the work to be used and does not compensate the photographer adequately once found. Essentially, an infringer who steals your work can claim that he tried to contact you. His punishment is to pay you what he should have in the first place. That may be hard to collect.

Hopefully, the proposal will be modified dramatically when adapted to legislation. The House Subcommittee on Intellectual Property will hold a hearing on March 8 and several professional photography group representatives will speak on our behalf. Some groups are asking that you contact your representatives now. Others have suggested that we wait to see what the legislation says. Clearly, if the resulting legislation mirrors the proposal, we must make an "all-out" campaign to protect our rights.

In the meantime, do all that you can to keep contact information with your photographs so that your work is not included in that considered "orphaned."

Take my advice; get professional help.
PhotoAttorney