Photo Attorney

Jun 9, 2008

Battle of the Blogs Over OW

While I'm a long-time fan, the Art Law Blog again misses the point. My blog of June 5, 2008, states specifically:

" . . . for those photographers who register their photos with the Copyright Office, they also would have to register with the private registries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements.

Thus, my argument against OW is not related to it being "a new attempt by Congress to coerce copyright owners into registering their works [with the US Copyright Office]."

But let's go with Mr. Zaretsky's example. How can a photographer know that she will be found with a "reasonably diligent search?" That term will be defined by each court based on the individual facts presented. Courts often disagree as to what comprises "reasonable diligence."

Mr. Zaretsky is correct: ". . . all the [private] database does is help [the photographer] defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors." No doubt. If we are forced to have OW, we need some way - perhaps with the private databases - to ensure that infringers can't use a work they claim to be orphaned when the owner still has rights. But copyright law as it exists today - without Orphan Works at all - is much better than any of these proposed options.

In sum, if a photographer goes to the trouble and expense ($35-$45 per registration) of registering her photos with the US Copyright Office, she won't want to risk not registering with the private databases, as well, since, under the proposed House Bill, that additional registration will guarantee (except for the current margin of error for electronic searching) that she will still be eligible for statutory damages.

Thus, I repeat: for those photographers who register their photos with the Copyright Office, they also will have to register with the private databases to rebuff a potential OW defense and thus be eligible for statutory damages.