Orphan Works : Damage Control

This Orphan Works drama has been a thorn in our sides for quite some time. By all accounts, there is a need for some legislation that addresses the situation that arises when the owner of a copyright protected work cannot be identified and located. It’s just that everything I’ve seen, read, and otherwise researched on the topic–from the perspective of photographers–has found all such previously proposed legislation unsatisfactory. Well hold your horses. A new bill has just been born in the House and the Senate. No one is shouting ‘victory’ by any means–not even close–but the ASMP thinks we’ve done all we can within reason. If you ask me, it’s just called damage control – and they might just be onto something. From their website:

As with any legislation, one could always wish for more favorable terms. Realistically, though, the House bill is about as good as photographers are ever going to get. If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership.

Read the full ASMP take on this topic here. As you might imagine, there are some vocal opposers. John Harrington is not happy. Nor is The Illustrators Partnership. SAA also miffed, here.

Me? I’m idealistic as hell, but I’m siding with the ASMP on this one. As someone whose got a record of standing up for this stuff, even having gone toe to toe on stage with the nice folks at the Copyright Office who supported earlier (read: really crappy) drafts of the legislation (Pro Photo Summit hosts, are you out there? Any chance of posting the video of that panel? Where is that content hiding?) I never thought I’d say this, but my gut is that the landscape is changing too fast. I think there is also a lot of misinformation out there on this… Suffice it to say, I’m no talking head and I’m certainly no lawyer, but don’t see this getting much better than it is in this draft. It’s sad and it pains me to say it, but I think it might just be true.

Update: if you want the bigger picture to this post, consider reading the handful of comments below – click the ‘continue reading’ link below …
and spending some additional time reading on this topic elsewhere online. The issue is very charged, as you will see. I’m not advocating the communication style of some of these commenters, but instead trying to highlight the complexity, the level of seriousness, and the sense of urgency for everyone involved.

Update #2: As there is a lot of rhetoric out there about the opposition positions on the House version of the bill, the ASMP has issued an FAQ page to address their pro position reasoning, as well as some podcasts. I encourage you to read up about all this stuff — both pro and con positions – in order to make the most informed decision possible. Links to both sides of this argument appear in this post and in the comments, and can also be found with a quick search. Check em out.

Update #3: Some new posts from the ASMP aimed to answer some questions:
FAQ — http://www.asmp.org/news/spec2008/FAQ_for_OW.php
Podcasts — http://www.asmp.org/audio/index.php
Orphan Works updates — http://www.asmp.org/news/spec2008/orphan_update.php

30 Responses to Orphan Works : Damage Control

  1. LawDog May 5, 2008 at 12:17 pm #

    Us lawyers know that it’s sometimes better to take what you can get because soon that gettin might be gone.

    Lame as the compromise is, I’m with you on this.

  2. Anonymous May 6, 2008 at 3:11 am #

    It’s not in the interest of ASMP or groups like it elsewhere to take this stuff lightly. They surely have a handful of great lawyers to consult. If they’re into it, you should consider supporting it…not blindly, but i got to think they’ve done their research.

    Great time in Dubai btw!

  3. Rafa May 6, 2008 at 12:18 pm #

    there is a video at
    you might find interesting. Or maybe you have seen it already or were there.

  4. Edward J. Silk May 6, 2008 at 4:59 pm #

    Hey Chase, sounds like you’ve got a heavy dose of blind faith. You ought to take something for that, before it spreads.

    Before endorsing an endorser, as you have just done, you owe it to your readers to learn about the bill in question and to consider the potential effect of that bill on all photographers, including yourself.

    ASMP has endorsed the bill for one reason. At the bargaining table, they promised to endorse the bill in exchange for concessions. Concessions were granted and ASMP endorsed the bill. Trouble is, the concessions were meaningless to most pro photographers, especially to B2B photographers.

    The orphan works bill will allow anyone in the US to use any image that they find, whether on the web or elsewhere, as long as they conduct a search, fail in that search, and then file a notice of intent to use the image.

    They can use the image for any purpose, commercial or otherwise, except for printing the image directly onto products that are useful, like a dinner plate. That is the only exception.

    Then if you discover the use, you have no right to sue the user for copyright infringement, even if you have registered your copyright, as long as the user is willing to pay a price that the user considers to be reasonable, and that a court would agree is reasonable.

    The reasonable compensation for usage by any non-profit is $0.00, even if the non-profit has a budget in the hundreds of millions and customarily pays thousands of dollars for image use.

    You have the right to go after their profits, but only if you can prove the amount of those profits, which will be impossible in almost any instance.

    Nothing whatsoever against asmp or any other org, but on an issue as critical as this one, you should not be making any assumptions that asmp or any organization has your back, and you should definitely not be urging others to sit calmly and take up the rear. Asmp has to endorse the bill because they made a deal. That doesn’t mean that photographers should do the same.

    It is very important that libraries, museums, scholars and other cultural institutions receive the right to make use of orphan works for legitimate non-profit purposes. The Section 108 study group will take care of that, without the orphan works legislation. http://www.section108.gov/ .

    The current bill allows the usage of any photograph, by anyone, for anything, with just a couple of hoops to jump through that are relatively meaningless. The registry requirement and the filing of intent are not going to help most photographers to avoid the wholesale unrestricted theft of their works. The reasonable compensation thing is also meaningless.

    Photographers and their organizations should fight this bill, and if the next one is the same or worse, they should fight again. Be as vocal as you can be, let your congressmen know that you support orphan works exemptions for legitimate non-profit cultural heritage purposes but that the current legislation goes too far and will destroy your business and your profession.

    Don’t think that your letter or email won’t make a difference. It will. Don’t rely on others to do the work for you. They won’t. Go here NOW and send one of the pre-written letters to your senators and reps:


    It will take you less than 5 minutes. When you are done, enter the email addresses of as many of your fellow photographers as you can, so that they can use capwiz as well.

    Chase, brother, you need to read the bill before you write about it.


  5. Anonymous May 6, 2008 at 5:59 pm #

    What if everyone in the history of our country resigned themselves to settling for what was handed to them by groups with ulterior motives, simply because it MIGHT get worse BEFORE it gets better? Where would we be? Where would you be?

    What if our Founding Fathers said and acted upon a similarly defeatist attitude, instead of rallying against tough odds, and defended our liberty and our copyright to free expression, and crafted the protections thereof?

    I hear the authors of the Constitution rolling in their graves, and ASMP is smugly leading a photographer death march, tolling the bell.

    Ask yourself why ASMP and PPA were so quick to cave and then them ask them. I want to know too. Where is the accountability? Whose best interest is being served here?

    And while you’re at it, ask ASMP about the MPCA debacle and let them try to defend that major conflict of interest that cost them scores of members.

  6. Robert Blutarsky May 6, 2008 at 8:34 pm #

    Chase, I’m afraid you are blindly putting all your eggs in the wrong basket here.

    ASMP, of which I am a member in the interest of partial disclosure (g), is trying to squash dissent on this issue, claiming we don’t know the behind the scenes details, which is true. We also don’t know the details of why ASMP is one of the few trade associations supporting this legislation, what behind the scenes deals they made with Congress while they were supposed to be open & transparent with all the other trade associations they claimed to be representing, and what financial gains ASMP may reap if this legislation comes to pass.

    I am not saying there is anything illegal going on here, just business as usual in Washington, with the losers being photographers & other visual artists. The winners have yet to be announced, but something tells me there is a whole lot of money about to be made here, as a rich vein of intellectual property is about to be mined.

    Too bad it isn’t the creators of that work that stand to make any of this profit.

    Negotiation may be the art of compromise, but lawyers get paid no matter what.

  7. Anonymous May 6, 2008 at 9:36 pm #

    You are just plain wrong on this one. Why just give up?

    Don Dormeyer Photographer

  8. Chase Jarvis May 7, 2008 at 12:08 am #

    Friends… I’m all sorts of ready to be wrong on this, believe me. I post about things to encourage sharing and discussion. So here we are – which is good…

    As an idealist who has fought against this for years, yes YEARS, as a vocal opponent. I’ve read the legislation and I’ve compared it to earlier versions of the legislation (where I’ve stood on stage in front of 600 people and gone nose to nose with the Copyright boss types). I see improvements. LIke I said in the post, I”m not happy with it, but is it a question of lesser evils?

    SOME legislation will pass on this topic. I want that legislation to be the best it can be. For those that think it can get better: Keep in mind there are some really big powers playing in this ballgame and some compromise will occur.where should we push back/where should we compromise?

    I’m all ears.

  9. Anonymous May 7, 2008 at 1:26 am #

    Chase, you are a good guy, and a very good shooter. But getting up on stage in front of 600 photography industry leaders doesn’t make you informed on the subject of copyright or orphan works, and certainly doesn’t make you right.

    From what I’ve heard, your comments there left the audience with the impression that you were uninformed and out of your league. And then you proclaimed that copyright protections for photographers should be reduced. Great thought. Reducing copyright protection at a time when photographers are already dropping like flies under the most severe market pressure since the great depression.

    This statement seemed more than a little bit disingenuous given that you make your living by licensing those copyrights, and most especially after your recent successful copyright infringement lawsuit, where you benefited significantly from many years of hard work by people in that room and others in the industry who have fought incredibly hard to achieve the protections afforded you under the 1976 copyright act and later revisions.

    You say that you’ve read the legislation and that you see improvements that justify your endorsement and support of the passage of the bill.

    Hmm. Which improvements are those?

    Was it the improvement that removed any limitations on the extent to which your photographs can be used by others without your permission or knowledge, with the entirely useless exception of “useful articles?”

    Or was it the improvement that allows all non-profits to use your work for free even if you discover the use? Even non-profits with huge annual budgets for marketing, and even non-profits that would use your work to promote causes that you oppose?

    Or, was it the improvement that wipes out your ability to seek profits of the infringer unless you can prove those profits?

    Or, was it the improvement that eliminates your statutory damages and attorney fees in the even if you registered your work in advance of the infringement with the US copyright office?

    Or, how about the improvement that prevents you from ever stopping anyone that uses your work under the amendment?

    You get the picture. Actually, under the legislation, everyone gets YOUR pictures.

    I’d like to see your in depth analysis and comparison of the previous and current bills, and your list of improvements that justify your endorsement of what is arguably the single more harmful piece of legislation in the history of your profession.

    The requirement that the copyright office certify registries is not an improvement, nor is the date of 2013. Note that the orphan works act if approved could be enforceable immediately upon the certification of the first two registries, which could occur as early as this year. There are registries standing by for launch. Forget about 2013. Think 2008, maybe 2009. Further, the requirement for the registration by users of a notice of intent to use an orphan work will do nothing to prevent, slow or discourage the use of orphan works.

    Your “turn that frown upside down” mantra is swell, in a gee whiz sorta way, but doesn’t really apply when your entire industry is about to take it up the backside.

    The trade associations bet the farm by promising to endorse the legislation. And they lost. Now they are stuck with endorsing a nightmare.

    Instead of advocating the passage of this bill, you should be using your platform to advocate action in opposition to the legislation, and working to propose revisions that will allow the usage of orphan works for limited purposes, allowing the preservation of our cultural heritage without placing every image by every photographer on the chopping block for free commercial usage.

  10. Chase Jarvis May 7, 2008 at 2:38 am #

    @ anon: easy there, pardna’

    Respectfully, your dramatic overstatement of my “endorsement” is more than a bit outta line, as is your (lack of) knowledge of my experiences on the topics at hand.

    I’m not in any one camp – I’ve asked for others thoughts and I’m seeking to encourage discussion–even debate–so long as it’s balanced, honest and well intended.

    Additionally, I’ve got a track record on this stuff that I’m proud of, one that has photography–which is my passion and my livelihood–at it’s core, and one that doesn’t have the word ‘Anonymous’ attached to it.

    I think I might know your kind. And I’m guessing that you have some really smart stuff to share on this topic and some great points to make, however the irony is that, given your current foot stomping, mud slinging approach, nobody will listen to you. Consider changing tactics – it could benefit a lot of people.

  11. Debra Weiss May 7, 2008 at 7:45 am #

    “Me? I’m idealistic as hell, but I’m siding with the ASMP on this one.”
    –Chase Jarvis

    There was no overstatement of your endorsement. You were loud and clear about it.

    –Friends… I’m all sorts of ready to be wrong on this, believe me.”
    –Chase Jarvis

    So let me get this straight. You endorse something and after the fact, you decide that you’re ready to be wrong?

    As one of the core speakers at PDN On The Road, I heard you say to the audience in Atlanta that copyright is changing and everyone has to accept that. Well guess what? They don’t. They can fight and keep on fighting. I was just glad I was able to be on stage after you so that I could remind the audience of the importance of copyright protection.

    What exactly is your track record with the topics at hand besides winning a lawsuit?

    So what exactly is your experience with the topics at hand beside winning a lawsuit?

    Passage of this bill will be devastating. There will be no room left for any additional nails in that coffin marked “Photographers”.

    “I’m not in any one camp.”
    –Chase Jarvis

    Excuse me, but do you ever read what you write?

  12. Jukka Vuorinen May 7, 2008 at 12:43 pm #

    As one of the core speakers at PDN On The Road, I heard you say to the audience in Atlanta that copyright is changing and everyone has to accept that. Well guess what? They don’t.

    Well, actually, copyright is changing. Just look music and movie industries. Digital age has changed world and this change won’t stop soon.

    I won’t comment Orphan works legistlation because I’m not living in US and I don’t know enough about it.

    But I just have to comment one more thing. I’m amazed how people attack Chase instead of his words. After all, he tells his opinion and tries to encourage discussion. That’s not bad thing, is it?

  13. Walter Dufresne May 7, 2008 at 2:27 pm #

    Publishing is changing. Distribution is changing. And some very powerful publishing forces, I suspect, want some changes made to US copyright laws. I joke to scholars and librarians that they shouldn’t be so darned quick to jump into bed with Rupert Murdoch in an effort to get Orphan Works legislation, that that Fox will inevitably leave them with an empty henhouse.

    But I don’t believe for a minute that the changes to publishing and distribution brought about by the world wide web are reason to change copyright laws. The clamor may come from scholars, but the quiet push comes from vested interests. Maybe the publishers are eager to get their hands on all the orphans created by Flickr’s users.

  14. Jaker May 8, 2008 at 2:25 pm #

    Seems like a lot of people have their hackles raised on this issue! From my perspective, this is an open dialogue…not a crucifixion.

  15. The Outsider May 8, 2008 at 6:16 pm #

    As an outsider, it’s clear to me that Ms. Weiss’ beef really isn’t about the topic at hand. She seems to have some other chips on her shoulders, perhaps at Chase (duh?) but perhaps at the universe too.

    The language in Chase’s post and comments is quite passive (‘might’, ‘should’, ‘perhaps’) and open, and isn’t a clear endorsement or a wish to have others fall in a quietly line behind him. If anything, it’s just the contrary. Ms. Weiss’ mis-reading of this position clearly is taking some other baggage along for a ride. So please, Ms. Weiss, take the advice given to you here in this discussion: if you want to be heard on the merits of your ideas, skip the personal attacks. They’re lame.

  16. Debra Weiss May 8, 2008 at 8:13 pm #

    “As an outsider, it’s clear to me that Ms. Weiss’ beef really isn’t about the topic at hand.”

    For the record:

    You clearly don’t know who I am. If you did you would see that my beef is most certainly with the topic at hand;

    My chips are always kept in bowls;

    FYI – when someone says “…but I’m siding with the ASMP on this one.” in this or any other language, it’s an endorsement;

    I don’t know Chase from a hole in the wall, so I can’t possibly have an issue with him personally. I wasn’t aware that quoting someone was a personal attack.

    I do however, have an issue responding to those who will not attach a name to their thoughts.

  17. Chase Jarvis May 8, 2008 at 10:35 pm #

    All right friends. Here’s a quick version of how the story goes:

    I join in a sea of voices as fighting against the last orphan works legislation a ways back. It dies in committee, we all celebrate but know another draft is coming. Another draft comes. I’m working 15 hour days on the other side of the world, but this is important stuff that can’t wait, so I review it along with the previous version. I read all the sites I can the APA, the Illustrators, the SAA, I use the comparo charts online that highlight the changes from one draft to the next, etc. Then I correspond with the big bosses at the ASMP, those on the front lines. These are people I know personally as well as professionally and have for many years. I’ve spent dozens of hours talking real, hardcore legal stuff with them. I’ve watched them first hand go to bat for serious photography issues. I’ve been to war with them. These are sharp attorneys and long time smart business types. I ask what’s up, they say basically that the bill is in the chute. It’s not a sweet bill by any means, but it might just be our best chance at not loosin’ the whole kit’n caboodle. The also acknowledge that their are vocal opponents and that there is a lot of misinformation out there, that some of what’s being is true that it’s not an ideal bill, but that if we shut this one down – we’re likely going to get hosed harder the next time around. And you know what, I BELIEVE THEM. Why? Because it’s what you do when your friends who are smart lawyers and business types advise you to do when it’s a totally reasonable read to the situation. You’d do it too, right? In fact, if you’re honest about it, you do this all the time.

    Do I LIKE the stuff that’s happening in the bill, certainly not. We’re losing rights and I’m not happy about it. But once again if’n I’ve got some smart friends – those whose are in this shit for a living, friends that I’ve seen perform in battle- tell me that this is a safer bet than the unknown in the next legislature, I accept that. I take them at their word. Now go ahead and get your panties in a knot about it. And if I’m at all wrong for that, let me be wrong. Because here’s the beautiful part: I’d love to be wrong. Because if being wrong means that the bill dies in committee due to all the letter writing and petitions and a new bill comes out down the road and is BETTER for photography, then get this: we’d all STILL BENEFIT! And that’s a good thing. I’ve backed up my photo homies in court – plenty of homies who had no idea that I was covering their asses in fighting for a cause. And they’ve benefited. Was I upset that they benefited from my hard work ? Hell no, I was okay with it – happy even. The rising tide floats all the boats. So by the same token, if now I’m wrong on this and I’ve got my back covered by some petitioners and lawmakers who create an outcome I’m told is a slim chance, then I’m eternally grateful. I’m humbled and thankful. And I’m okay with that and I think they’d be too.

    So again, I read, I compared, I asked some smart friends from the front lines and I came up with a reasonable answer. Do I believe and honor and respect all of the vocal opponents? ABSOLUTELY. I love the APA response. I love the SAA response. I love em. But when I’m given a lessor of two evils scenario by some friends I’ve gone to war with whose job it is to know more than I do about this sort of stuff, I become okay with it. And by “becoming okay with it” I mean I post my thoughts in a blog and encourage discussion to learn more. If something comes out differently than I see it, then that’s okay too.

    Two interesting points to be made here apart from what’s been said already.

    1.This is not a black and white issue as some here are trying to make it. There’s a lot of gray, and it’s murky and scary and big and thats okay. I’ve got little patience for those conjuring up the “for us or against us” mentality. Gray is okay. It’s human.

    2. Don’t forget, we’re all in this together and we all genuinely want the best. We’ll get thru it.

  18. Anonymous August 13, 2008 at 8:16 pm #

    You might want to check this out. Brian Sherwin from the Myartspace Blog interviewed Alex Curtis from Public Knowledge about the Orphan Works bill. If you read it closely you will see that Alex contradicts himself several times.


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    I don’t understand why so many art organizations are fighting against the Orphan Works bill when they are too cowardly to speak out against people who are already violating the copyright of other artists as Shepard Fairey has done. He is a prime example of the type of artist we should be going against instead of supporting. Put up or shut up. Look up what he did with the art of Rene Mederos. Or are you afraid of making the Obama crowd angry? You can’t have both worlds you know! We can’t stand for some rights some of the time. We must stand against ANYONE who steps on a fellow artists rights.

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