The Online Photographer

Check out our new site at!

Sunday, February 26, 2006

Emergency for Professional and Creative Photographers

Folks, we have a very serious situation on our hands. Congress is right now rushing into law a bill to legalize the theft of YOUR original photographic work.

It's called the "Orphan Works" amendment to the copyright act. What it basically says is that if anybody comes across your professional or creative photography, any time, anywhere, and then attempts to locate the creator (you) but can't, then they can just take it. Take it and use it however they want to.

You forfeit your right to control your own work. This would be true even of photographs with registered copyright.

So if you move, go out of business, marry and change your name—if your signature or stamp or copyright notice becomes detached or erased from your work—if you're on sabbattical or an extended vacation—if an image of yours is circulated on the web and appropriators can't attribute it back to you—any of a dozen similar situations—if any image of yours cannot be traced back to you, anyone can claim it as an "orphan work" and use it. That is, steal it. Legally. IF you ever find out, you can get "a reasonable fee" (how is not clear), but the law deprives you of your right to sue the infringer for using your picture without your permission, or for purposes that you don't approve of. You will have NO right to claim damages. You won't even be able to sue for recovery of your legal expenses.

To call this an outrage is an understatement. This is a potential disaster for anyone who makes part or all of their living taking pictures. Many of us have had the experience of discovering years later than someone has ripped off our work and used it without our knowledge or permission, and without paying for it. This law would protect the people who do that. It is a law almost designed for abuse and exploitation of photographers. It hamstrings a copyright act that needs strengthening in the face of proliferating reproduction methods, not weakening.

The ASMP (American Society of Magazine Photographers) is taking the lead on this. Go to its web page, take the time to read it, TAKE ACTION, and SPREAD THE WORD.



Blogger Thomas said...

You do realize that the goal of this law is not to make it possible to steal your work, don't you?

Don't get me wrong, I'm not saying this will not be a possible consequence and I'm not saying the law is good. But the goal is to make sure works will not be lost. With current copyright law, some works have already been lost because it was impossible to contact the copyright owners and get the permission to publish them.

I guess what I'm trying to say is that because of current copyright law some works *will* be lost and I assume you will agree that this is a problem. I'm not sure what the solution is, but instead of fighting this law as if its one and only purpose was to hurt you, why don't we try and solve its defects and find a solution to the original problem at the same time?

3:53 AM  
Blogger Sean Winslow said...

Having now read the Copyright Office document and the suggested language, I must say that the level of alarm raised by your post and the ASMP seems to be unecessarily apocalyptic.

Whilst I understand the concerns raised, I think the prospect of massive unlicensed use of copyrighted materials under the language of this amendment is fairly minor, and, as annoying as it may be to those who own the copyrights, greatly out-balanced by the benefits to the public use--which is, after all, the end of the intent of copyright law, if not often of the practice of said law. The requirement of 'reasonable diligence' and the placement of the burden of proof upon the infringer are reasonable provisions which advantage the use of proper permissions over trying to prove that a work is orphaned--if someone is underperforming with regard to searches or purposely effacing identifying information, they are not covered under the language.

My experience is primarily in the academic study of the history of the book, as, at the end of the day, I do not make any money off my photography, so professional photographers are welcome to disagree with me, but I will say that there is a growing consensus among those I communicate with in media studies and book history circles that the changes in reproduction technology will necessitate changes in business models because litigation will not be able to keep up with the scope and character of possible new uses--the general public does not have the appreciation for copyright that photographers do, and advances in digital imaging, even as they revolutionize the production of images for photographers, revolutionize the transmission of images for anyone with a computer and a cable modem. The ASMP's approach supporting litigation seems to me very backwards; instead of fighting a losing battle to litigate problems away, I suggest that it would be more productive if the photographic community discussed and implemented standards of labeling (if, for example, you put identifying information on the back of an image and in the lower-right corner, however small, and on the mat, exactly how effaced would the image have to be to be unidentifiable?), constructed contact databases (even if just a list of mail and email addresses on the internet), eliminated pricing schemes that lose to the use of home imaging technology (e.g. using portrait sessions as a loss-leader for sales of prints instead of charging prices that represent the true value of the work), and created standards within the industry for crediting photographers (the ASMP cites magazine work specifically, which seems contrary to the reasonable diligence requirement, which should include contacting magazines for their records relating to an image and, in any event, probably raises a larger issue of the reasonableness, if ownership is a major concern, of submitting work to a medium where it will not be credited).

4:04 AM  
Blogger Petteri Sulonen said...

Could it be that the trend of paranoid over-protection of copyright is finally about to reverse? I sure hope so!

8:30 AM  
Blogger Judi Hanford said...

Can someone please tell me the number for this bill? This helps the Congressional Reps., as they tend to go by 'bill numbers' rather than names. Thanks.

Judi Hanford

2:34 PM  
Blogger Scott Kirkpatrick said...

I wouldn't say that the direction of copyright law over the past years is paranoid, simply greedy. My understanding is that the extension of copyright terms by 20 years every ten years was aimed at keeping Mickey Mouse out of the public domain, regardless of how much other truly abandoned work will thus remain unavailable. My sympathies are with those, like the Internet Archive who are making progress at putting our intellectual heritage online, but risking serious legal difficulties as they do it.

2:58 PM  
Anonymous ankit said...

I have long admired your blog, but I would have to disagree with you here. I have not read the bill or the debate going on around it, but from what you describe, it looks like a good thing. I for one would welcome any change that reduces the power of the copyright law.

9:00 AM  
Blogger MBrown said...

Sounds almost as if some of you would not care if someone else would use your creative work for their own profit! Or, ... am I reading this wrong here this morning?
Copyright laws are a good thing if you are in business for yourself, ... period!

I can understand how this new proposed legislation would benefit those like Stanford University for example (and others), who try to create new works from old films and text books from 75 years ago for instance and can/will have a difficult time in finding the original creator of those works, but this new legislation in its current form and without any changes will do many a hopeful photographer in today.
I see both good and extremely bad in this legislation.

Another thought though, ... if I go out into a parking lot, see some keys in a car, yell out loud for the owner of that car to step forward, the owner is not to be found anywhere, ... well, I guess I have every right to take that car for my own use, ....... right?

What's the difference?

9:31 AM  
Anonymous Anonymous said...

I agree with most of the above posters - the ASMP press release is unnecessarily apocalyptic in tone. This is a good law which we should support. Congress is not about to pass a law making theft of intellectual property easy, unless the extremely pro-business, pro-IP, conservative congress we have was secretly replaced by communists last night.

See I to see some comments on the orphan works issue that are much more complete than the scary press release of the ASMP lawyer.

There's a nice set of links at to comments submitted by big groups on both sides (the recording industry, the Electronic Freedom Foundation, libraries, museums, etc.).

-- Rick Keir

3:26 PM  
Anonymous Anonymous said...

That is an inane comparison MBrown. The difference is that by taking your car, I have deprived you of your car, but in copying your photo, I have deprived you of nothing except the potential revenue of a sale. Furthermore, that potential deprivation can be made good later.

Comparing physical property with ephemeral property is fundamentally intellectually bereft. However, it is a common tactic of greedy corporations who know that "stealing" as a word has more impact that "copyright infringement" no matter how inaccurate such a term may be.

6:37 PM  
Blogger Mike Johnston said...

So what you're saying is that if Disney makes a movie, and wants to sell me a DVD, I have a right to make a pirate copy, correct? The movie is already made. It already exists. It costs them nothing if I make myself a copy, as long as I wouldn't have bought it otherwise? Is that it?

But if I take it, by definition I WANT it, so how can I prove I wouldn't have bought it?

You're speaking as if intellectual property is somehow more disreputable than real property. If I spend a year writing a book, with no pay but in anticipation of future sales, and then put it out on the market for sale at $50 for a printed book and $10 for a PDF, do you have a right to steal a free copy of the PDF? Does it REALLY cost me nothing? You're saying, then, that the work I put into the book by writing it is something I don't deserve or have a right to compensation for? And that you have a right to DECIDE whether to compensate me lawfully or not, as you see fit?

Methinks you'd better rethink. Stealing intellectual property is if anything more despicable than stealing real property, because the victim of the crime is more vulnerable and more dependent on the lawful behavior of others.


7:10 PM  
Anonymous Anonymous said...

There are two Anonymous comments to this post. Mine is the latter one.

MJ, can you please point out where I said it was OK to pirate a DVD? Or steal a book? Or that creatives don't have a right to compensation? All I did was take issue with MBrown's poor analogy of the car. Poor mental models leads to sloppy thinking, sloppy thinking leads to bad decisions.

I really think you should read what I wrote before putting up some kind of ridiculous straw man to refute.

Please keep in mind this entire discussion is in the context of orphan works.

9:52 PM  
Blogger Mike Johnston said...

I read what you said, all right. Here's where you said it:

"The difference is that by taking your car, I have deprived you of your car, but in copying your photo, I have deprived you of nothing except the potential revenue of a sale. [...] Comparing physical property with ephemeral property is fundamentally intellectually bereft."

The term of law is not "ephemeral property," it's "intellectual property," of which copyright is a bulwark. It is the principle whereby I am granted the right to reap a fair reward from my work. Being a photographer may be a pasttime for many, but professionals put a great deal of time and money into their training and equipment, and may put a great deal of effort and money into getting specific shots. The photograph they get as a result BELONGS to them, in the same way that a book belongs to its author, or a movie belongs to the people who paid to have it made, or a car belongs to its owner. There's no difference. Since you want to keep the discussion on point, explain to me how it is that "by copying my photo, you deprive me of nothing."

That is just exactly the point. I get to say what happens with my photograph. I own it. You can't have it unless I say you can.


9:01 AM  
Anonymous Jake said...

As a student of International relations and Economics as well as an amateur photographer, I sincerely believe that we citizens of 1st world nations must protect intellectual property with every means available. Our Western economies are becoming more and more based upon intellectual property, while we allow other developing economies to provide the required labor.

The Stanford University Library is mentioned in the proposal as wishing to make many orphaned works available. This is nice for them, however I doubt that the University itself would allow any of its own research to be tossed about on the internet if someone were to find an unaccredited copy of it and post it somewhere or produce a derivative work from it. They would sue and demand compensation. We should all have the same right.

Our ideas are our own and our work is our own. You wouldn't want the guy in the next cubicle to turn in a report that YOU created with his own name on it. And that is the crux of this. If we chose not to publish it, then that is our choice and it should remain unpublished until after our death or as long as our estate keeps it unpublished. It is ours, and we should be able to defend and protect it as we wish.

11:28 AM  
Anonymous Anonymous said...

Several years ago, "Analog" SF magazine carried a humourous piece called "What is an Engineer?". Oddly enough, a few months after I read it, I read "The Dilbert Future", and the same piece was a chapter in the book, pretty much word-for-word. The author for Analog subsequently parted ways with the magazine...

I don't think he was dishonest - just lazy. Someone had taken the time to copy and post the piece as humour on the internet, where everything is anonymous; he took what he thought was anonymous wit. This is the danger - once a work is stripped of identifiers -file name, ID tags, owner notice cropped off - how are you going to identify it? At least for text, you ca do a search; I haven't heard of good picture search software.

I am in favour of more relaxed copyright laws; but the provision in question would make more sense if it incorporated some standard costing, or prohibited outright commercial use (i.e. university data OK, advertising campaign - not).

1:50 PM  
Anonymous Anonymous said...

I find your attitude un-necessarily alarmist, indeed, counter productive in some ways.

One of the issues we work with as librarians, "ALL THE TIME," is with orphan work(s). We spend a lot of time, money and effort trying to locate the originator(s) of such things - and cannot - thus cannot use them.

Take a sedative, oh, but that would defeat the purpose of everyone reading YOUR blog.

John D. Berry, UC Berkeley

2:07 PM  
Anonymous Anonymous said...

Wow, MJ, you obviously feel very strongly about this, but that doesn't justify being fast and loose with people's words. You're a professional writer, and we expect better of you.

Here's what I said.

(in the context of orphan works) "... in copying your photo, I have deprived you of nothing except the potential revenue of a sale."

Here's how you quoted me:

"by copying my photo, you deprive me of nothing."

What a difference a full stop makes.

As far as the term "ephemeral property" goes, I was trying to find a generic term to contrast against physical property, given I was trying to explain why the analogy was bad. Having consulted a thesaurus, probably the term "intangible property" would have been better, but you seem to have taken my use of the term as some kind of insult.

Let me try to once again redirect you back on point. My original comment addressed only why MBrown's car analogy was a poor one. Unless you would like to defend the analogy, you are not responding or refuting any of my other opinions because I haven't given any.

Now if you want to post something that says ... "some people believe XYZ .. and I disagree because ..." go right ahead. You've got the soapbox to do so. But stop putting words in my mouth.

4:23 PM  
Blogger Mike Johnston said...

This comment has been removed by a blog administrator.

4:28 PM  
Blogger Mike Johnston said...

Hi Anonymous,
Sorry. I'll try to stop putting words in your mouth.


4:38 PM  
Blogger Mike Johnston said...

I just removed my answer to John Berry...Censored myself. I was getting very...argumentative. I guess I have some, um, "creative control issues" would you say?

No need to subject you good folks to such things. I would rather my blog be a pleasant place for people to come to for information that's helpful or thought-provoking. But not anger-provoking. Who needs that? Sorry if I upset anybody.



10:17 PM  
Anonymous Silence said...

We need an indefinite freeze on any amendments or subversive legislation to undermine the purpose of the copyright law.

An "irrevocable moratorium"

It's there for a reason, not because of greed... Because of the incredible amount of effort and monetary investment required to achieve such works under who knows what kind of conditions, work environment, risks taken etc...

The time and money it takes for this kind of work, the relationships, the contracts and license agreements to ensure that the photographer or copyright holder, as creator of the work; or owner of the copyright license, is compensated for the use of their work according to the license agreement.

It is their financial security on the line. This is something you cannot underestimate in this world of "money talks"

Considering all the files sitting on server's just abandoned by the originator after a week, just so they could post an image in a forum for their friends to look at online.

All these images just sitting there, abandoned... Ripe for the picking by a server owner or host service provider. It would be ever so easy to send those images to market.

2:57 AM  
Anonymous William Joseph Nieters said...

When I create a piece of art, what I have created is my personal intellectual property and as such it should in no way be available to the general public until I deem it so.

Now, if I decide that I would like to share this intellectual property with the public, special copyright laws can help protect me from those who might want to steal (by duplicating) my personal intellectual property. This is special protection and should be in addition to any other laws that protect against theft.

But, by availing myself, if done intentionally, of copyright protection, I "trade" something of value. In exchange for this special protection, I agree to a release my personal intellectual property into the public domain at a future date.

I should however, have the option to not take advantage of copyright protection and to retain my intellectual property as my own into perpetuity, relying solely on the general laws of protection against theft.

Therefore, the only works of art that have been formally registered with the copyright office should be subject to the possibility of being designated as orphan works.

Just because I create a work of art, I should not be forced to donate it into the copyright system.

7:55 AM  

Post a Comment

<< Home