NPPA Cannot Support Orphan Works Legislation   

DURHAM, NC (May 7, 2008) – Today the National Press Photographers Association sent a letter to Congressman Howard L. Berman (D-CA) , chairman of the House Committee on the Judiciary, stating NPPA's objections to the "Orphan Works Act of 2008" (H.R. 5889).

"We cannot in good conscience support this bill," NPPA president Tony Overman< /strong> wrote to Berman.

Overman urges photojournalists who oppose the bill to immediately write to their representatives.

The Illustrators Partnership of America has an
online letter generator that can be used to send your Congressional
leaders a note of objection about the two current orphan works bills.
IPA has customized an individual letter for NPPA members and
photojournaists to use, and it is online here< ;/a>.

An "orphan work" is a photograph or illustration that is protected
by copyright but whose copyright owner cannot be identified or located.

"We
recognize well the difficulties of managing rights for historical
images. We believe a carefully and narrowly tailored expansion of the
fair use exception to the copyright act would address the legitimate
concerns of librarians, historians and educators," a statement from
NPPA to the membership said.

"There is no reasonable argument
to authorize infringements for commercial use. Unpublished works should
also not be exempted – especially since publishing them without their
creator’s permission might violate contract, privacy and other legal
precepts. If the sharing of historical works is the true goal of orphan
works legislation, there is certainly no reason at all to extend
infringement exemptions to newly created works."

In Overman's
letter to Berman he wrote, "Therefore, on behalf of our board and
10,000 photojournalists, students and editors throughout the country, I
urge you to consider the significant economic and artistic harm this
draft legislation could cause and amend it so that it: minimizes
potential abuse; balances the needs of those who legitimately seek
orphan works exemptions; and offers greater protection those who seek
to protect their copyrights."

In April 2007 a pair of orphan
works bills appeared before Congress. Both are on a “fast track” for
approval during this session and a mark-up of the House bill that NPPA
objects to took place May 7. The bills would exempt from full
protection under U.S. Copyright law millions of pictures – new and old,
published and unpublished, even many previously registered with the
U.S. Copyright Office.

Both the Orphan Works Act of 2008, the
title of the House bill, and the Senate’s Shawn Bentley Orphan Works
Act of 2008 (S. 2913) would effectively allow photographs and other
created works to be used without prior permission if the actual
copyright holder could not be identified or located.

Under
the proposals, the copyright holder could not collect statutory damages
or attorney fees from an unauthorized user, so long as that user
conducted a “reasonable search” to find the copyright holder and obtain
permission.

NPPA believes that the bills could imperil
creators of original work, including most NPPA members. The
organization's views will be shared in an eMail message to all members.

"While
NPPA acknowledges all of the hard work that has gone into blunting some
of the most onerous elements of the proposed legislation, there is
still far too much opportunity for overreaching and abuse for
commercial gain," NPPA's general legal counsel Mickey H. Osterreicher said today from Buffalo, NY.

"That gain would be to the detriment of our members. Unfortunately
what began as a measure to allow librarians, historians and educators
increased access to older copyrighted works has become a misguided
attempt to dilute current copyright law, which is something that we as
an organization of photojournalists cannot support." 

There
are supporters for the House bill. A coalition of librarians,
historians, educators, documentary filmmakers and anti-copyright
crusaders support orphan works legislation, saying it would protect
them when using such works in presentations and publications.

The
current House bill includes several improvements over the legislation
of two years ago, but NPPA's leaders believe that an orphan works
exemption runs counter to the best interests of photojournalists and
photojournalism, as well undermining America’s Constitutional and
international commitments to copyright.

For several years NPPA
has tracked orphan works proposals and partnered with other
organizations of photographers and illustrators to fight orphan works
exemptions and support copyright in general. Several associations in
the Imagery Alliance, of which NPPA is a member, have worked with
Berman's staff to discuss the photography industry's collective
concerns.

The American Society of Media Photographers (ASMP)
and the Professional Photographers of America (PPA), are also members
of the Imagery Alliance and they have staff attorneys and registered
lobbyists who have with Congressional staff to discuss the photograph
industry's collective concerns.

In NPPA's eMail message to
their members, the organization's leaders say, "Orphan works is a
complex issue, but it could prove significant to the future of
photojournalism as a viable profession. NPPA urges all photojournalists
to include identifying metadata in their image files, continue to
register their work regularly with the Copyright Office and keep their
information up to date in photographers’ registries (such as NPPA’s
Find-a-Photographer, PLUS, and photographerregistry.com) to protect
their images from being viewed as orphans.”

"We believe the
only possibility of defeating these proposals is through a grass-roots
effort," NPPA told its members. "Legislators and their staff take
notice whenever they are contacted by their constituents. We cannot
overstate the importance of members voicing their opinions. A
significant response on this issue will carry far more weight with
Congress than any professional group or lobby. We urge all members to
participate in the process for this critical piece of legislation."

"Many
of the concerns of visual artists have been addressed in the current
House bill and we are grateful for the efforts that have been made on
behalf of photographers, but the bill, as it is written, is still a
threat to photographers," former NPPA president Alicia Wagner Calzada said today from San Antonio, TX. She led NPPA's opposition to orphan works legislation when it was proposed in 2006.

"A
photographic work can be orphaned almost immediately simply by being
illegally downloaded and posted multiple times. I think that
photojournalists are particularly at risk for this as their images are
stolen relentlessly and have immense value, both as news and as
history. For this reason, orphan works legislation has the potential to
severely damage photojournalists and their ability to enforce their
copyright," Calzada said.

In 2006 that year's orphan works bill died in committee when its sponsor, Texas Republican Rep. Lamar Smith ,
withdrew the bill from consideration at the committee’s final mark-up
session for the term. Smith told the committee that he didn't see any
reasonable chance that the the Copyright Modernization Act of 2006 (HR
6052) would be signed into law during that year's session.

Today, NPPA offered their members these links for additional background information on orphan works:

   

      

Photo Business and News Forum blog

      

ASM P’s analysis, including chart comparing H.R. 5889 with 2006 bill

      

U.S.
Copyright Office Orphan Works page, including links to its report, H.R.
5889 (the Orphan Works Act of 2008), S. 2913 (the Shawn Bentley Orphan
Works Act of 2008), Congressional testimony

      

Editorial Photographers-UK blog post on U.S. Orphan Works

      

Lawrence Lessig – a supporter of “free” information – on Orphan Works

      

The Stock Artists Alliance detailed information on Orphan Works

      

Il lustrator Partnership’s Orphan Works Resource Page

      

Pictur e Licensing Universal System – a solution to prevent Orphan Works

      

The Universal Photographic Digital Imaging Guidelines (includes image metadata info)

   

 

; Be informed. Be
involved.

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