Alert – Another Bill Seeks to Reduce Photographer’s Rights

The Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (a.k.a. “The Boucher bill” or the “Fair Use Act”) is another attempt to impinge on photographer’s rights. Introduced earlier this year, it will shift the burden of proof to the photographer to recover statutory damages for secondary infringement (such as when the photo processor scans a professional photographer’s photo at a customer’s request). The pertinent section reads:

Section 504(c)(2) of title 17, United States Code, is amended by adding at the end the following: `The court shall remit statutory damages for secondary infringement, except in a case in which the copyright owner sustains the burden of proving, and the court finds, that the act or acts constituting such secondary infringement were done under circumstances in which no reasonable person could have believed such conduct to be lawful.’

If passed, the photographer will have to prove that the secondary infringer had knowledge that the act was unlawful.

It is difficult to see how the bill “promote[s] innovation,” “encourage[s] the introduction of new technology,” and “protect[s] the fair use rights of consumers” as the bill purports to do.

Thanks to Laurie Dechery of the General Counsel’s Office at Lifetouch Inc. for submitting this alert topic.

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