All Hands On Deck: Oppose Senate Orphan Works

While positioning on the the earlier OW bill was quite divided (earlier post + comments), looks like the Senate version of the Orphan Works bill gets huge thumbs down from all photography groups, as far as I can tell. I encourage you to take 5 minutes and follow instructions from the ASMP and APA on how to be heard. Sample letters and instructions after the jump – click the ‘continue reading’ link below:

The ASMP wants you to treat the Senate Orphan Works bill like this:

Re: S.2913, the Shawn Bentley Orphan Works Act of 2008

Dear Member:

On May 14, the Senate Judiciary Committee approved some revisions to its version of an Orphan Works amendment. You can see the full text of the bill, as revised, here. In spite of ASMP’s efforts, the bill does not provide even the minimum protections that ASMP considers necessary for photographers, and it is now time for the members to make their voices heard in the Senate.

We urge you to write to your Senators as soon as possible. You can find the name and contact information for your two Senators here. (After you have selected your state, your Senators will be the first two names in the list.) You can find a letter that you can copy and paste, print on your letterhead and fax to your Senators, here. Please feel free to change the wording as you wish.

It will take you only a few minutes to create and send these letters, but they will be some of the best used minutes of your career.

Thank you for your support in this important matter.

Victor Perlman
General Counsel
American Society of Media Photographers

and then offers this follow-up:

Dear ASMP Member,

The Call to action sent earlier to write your Senator contained a link to a sample letter. We have pasted the sample below for you to use as a template. It is very important that you make the specific request of your Senator that they vote “no” unless it includes specific language.

Please be sure you include the following language, “I urge you to oppose this bill unless and until it is amended to contain at least the minimum provisions that are critical to protect photographers, including but not limited to a notice of use that must be filed before the use is made, upon penalty of losing eligibility to claim orphan work status for failure to file the notice; an archive of the notices, to be maintained by the Copyright Office or an approved third party; and other protections that appear in the current (May 15, 2008) language of H.R. 5889.”

Thank you.

The full sample letter is posted below.

Re: S.2913 the Shawn Bentley Orphan Works Act of 2008

Dear Senator ________________________________:

I am one of your constituents, a professional photographer, and a member of the American Society of Media Photographers (ASMP). It is crucial to my professional livelihood that you oppose this bill in its current form. If this bill’s current language becomes law, it would permit, and even encourage, wide-scale infringements of my copyrighted photographs while depriving me of many of the protections currently available to me under the Copyright Act, including the right to ask the courts to award statutory damages and attorneys’ fees. In the publication world, the reality is that most photographs will easily become considered orphaned, depriving me of a significant part of my much needed income.

I urge you to oppose this bill unless and until it is amended to contain at least the minimum provisions that are critical to protect photographers, including but not limited to a notice of use that must be filed before the use is made, upon penalty of losing eligibility to claim orphan work status for failure to file the notice; an archive of the notices, to be maintained by the Copyright Office or an approved third party; and other protections that appear in the current (May 15, 2008) language of H.R. 5889.

Please let me know if you have any questions or if I can provide you with any additional information. Thank you for your time. I hope that you will take the necessary actions to protect my interests and prevent the passage of this bill until it is amended to be fair and reasonable to all parties.

Respectfully yours, (your name)

The APA’s statement is similar to ASMP on The Senate version of the bill, but not on the House version. If you recall they oppose both Senate and House bills. The APA have a great resource page here.

Why wait? Contact your Senator today! 5 minutes of your time is a necessary investment.

You may be interested in:

10 Responses to All Hands On Deck: Oppose Senate Orphan Works

  1. Taylor Norrish May 19, 2008 at 6:11 pm #

    a great way to contact your reps is at Govit.com/usgovernment/contact

    Registration is free and literally takes seconds.

    Another great way to take action is to vote on the actual legislation and have your vote, and letter, sent direct to your reps.

    http://www.govit.com/S_2913/
    http://www.govit.com/H_R_5889/

    Check it out, and take action! :)

  2. Taylor Norrish May 19, 2008 at 6:11 pm #

    a great way to contact your reps is at Govit.com/usgovernment/contact

    Registration is free and literally takes seconds.

    Another great way to take action is to vote on the actual legislation and have your vote, and letter, sent direct to your reps.

    http://www.govit.com/S_2913/
    http://www.govit.com/H_R_5889/

    Check it out, and take action! :)

  3. David May 19, 2008 at 8:33 pm #

    The Bill will not only effect US residents but anyone who makes their work available on the net. Just because you live some place other then the US does not mean that you are not effect by this bill, if someone in the States decide to use your work without your permission you will have to go after them in US court.

    Any idea how Non US photographer can help out to get this thing taken off the table?

  4. Marcos G. Meider May 20, 2008 at 2:01 pm #

    Totally agree with you David. This is going to revolve into big problems and it will have a global effect on all of us. Quite worrying!!.

  5. Chase Jarvis May 20, 2008 at 6:27 pm #

    Good question, David. I’ll see if I can’t get someone in the know to chime in here…

  6. TritonSecure May 21, 2008 at 3:11 am #

    lots more here… http://www.itwire.com/content/view/18308/53/

  7. Tony May 21, 2008 at 5:46 am #

    I agree, this law would suck

  8. Victor Perlman May 22, 2008 at 2:28 pm #

    David, you make a great point. Any orphan works amendment in the U.S. will
    almost certainly apply to works from all over the world. Sadly, the U.S.
    government does not seem to care that other countries may not share the same
    view of how orphan works should be handled as the U.S.

    The prime examples of that attitude in the Copyright realm is the U.S.
    approach to the “moral rights” of copyright owners. These rights (sometimes
    called the rights of paternity and integrity) are extremely important in
    most other countries. When the U.S. joined the Berne Convention in 1989, it
    was required to amend its Copyright Act to provide moral rights. It did
    that, but it did it in such a way as to make them almost non-existent and
    applicable only to very limited editions of fine arts. Take a look at §106A
    of the Copyright Act to see what it says.

    Off-hand, I do not think that there is much that photographers from other
    countries can do to affect U.S. copyright law. Typically, U.S. lawmakers
    are interested in hearing only what their constituents have to say.
    However, you could try contacting your own lawmakers to see if, at the
    national, diplomatic level, your governments might talk to some people in
    the U.S. government to let them know how distressing all of this is and how
    economically devastating it might prove to international trade.

    Just a thought,
    Vic

    Victor S. Perlman
    General Counsel & Managing Director
    American Society of Media Photographers (ASMP)
    http://www.asmp.org

  9. Anonymous May 23, 2008 at 11:42 am #

    They have a new revision in the works it does contain better wording in sections but it too is still way to loose. Also, the entirety of the proposed law would allow the copyright to die with the copyright holder which means that heirs would now be disenfranchised from a current inheritable asset.

    Ben Cochran

    (4) REASONABLE COMPENSATION- The term `reasonable
    compensation’ means, with respect to a claim for infringement, the
    amount on which a willing buyer and willing seller in the positions of
    the infringer and the owner of the infringed copyright would have agreed
    with respect to the infringing use of the work immediately before the
    infringement began.

    I have a serious problem with this one too. Let’s say that it is a first publication for an artist and that the infringing party has a schedule for new artist ~vs~ established artist that they have listed? Let’s say that a well established artist may charge $10,000.00 for the use of this image but the infringer normally only uses stock images at a price up to $500.00 for use. Once more, a first time artist that may have only been paid $35-$50.00 for their past works that were only used in News Paper print would suffer drastically with this provision. Wouldn’t the court refer to the past pay of the artist as reasonable or what this particular infringer normally pays? They would greatly benefit by breaking this new law and the artist would suffer drastically. It comes very close to price fixing in my book but it goes much further in the government providing legislation that entities can use to break a particular law for profit. It takes rights from one group and gives to better benefit to other, who fall into the category of minority in numbers of will and only measures composition benefit for the minority at the expense of majority. In this case the minority holds the collective purchasing power over the majority who only want to protect their current rights of livelihoods. At least that is the way that I see it…

    The provision also stated the composition would be equal to what would have been negotiated prior to the infringement. So, if this work would have been illegally used in a derivative 20 years ago, would that not constitute the first infringement and also devalue the work of current rates? Seems that this bill would also go a long way in devaluing collectable arts.

  10. Blake B June 7, 2008 at 2:19 pm #

    I may be wrong (and I can’t be arsed to wade through several thousand pages of leagel documents to verify it), but… Isn’t this bill in violation of the Berne Convention and TRIPS agreement. As I understand it no signatory state may instatute any law or legislation that cercumvents the terms of the international treaty.

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