The Legal Lens
with Samuel Lewis
Q. Over the last few
entries of The Legal Lens, we’ve been
discussing contract issues.
However, something has come up that I’d like you to address,
particularly since I understand the issue may be time sensitive. What can you tell me about orphan
works?
A. The term “orphan
works” relates to copyrightable works where it is difficult or impossible to
identify or locate the person who created the work. If the person who created the work cannot be identified or
located, then there is no way to obtain consent or a license to use the work. As such, a person wishing to use an
“orphan work” must make a difficult decision: use the orphan work and potentially face liability for
copyright infringement or select a different work where it is possible to
locate the author and obtain consent and/or a license.
According to a notice issued by the Copyright Office in
October, the “[Copyright] Office has long shared the concern with many in the
copyright community that the uncertainty surrounding the ownership status of
orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are
a frustration, a liability risk, and a major cause of gridlock in the digital
marketplace.” As it did a number
of years ago, the Copyright Office is calling for comments regarding the
“orphan works” issue. The last
time the Copyright Office called for comments, proposed legislation (the Shawn
Bentley Orphan Works Act of 2008) followed that had the potential to
significantly impact the rights that copyright holders currently enjoy under
the law.
We’d all like to think that someone who wants to use our
images will be able to find us. For
those of us who are meticulous about using copyright notices and may have a
presence on the web, it may be possible to locate the photographer who holds
the copyrights to certain works.
However, that’s not always the case, and since many photographers
register batches of images with each registration, the Copyright Office
database may not be helpful for locating the photographer who created a
specific image. According to testimony
that various university librarians submitted the last time the Copyright Office
called for comments, the problem is a very real one: Cornell University’s librarian reported that the library’s
collections include more than 350,000 unpublished photographs that it would
like to make available, but only 1% of the photographs include any indication
of who created the image; the University of California, San Diego librarian
reported that only about 4,000 of the more than 100,000 photographs in its collection
could be made accessible over the Internet.
Q. Why does it seem
like this issue is more of a recent phenomenon?
A. In many respects, it
is a recent phenomenon, since it relates to the fundamental change to copyright
law brought about by the current Copyright Act (the Copyright Act of 1976 as
amended).
Under the current Copyright Act, the copyright system
underwent a fundamental change.
Prior to the current Act, the copyright system was an “opt-in” system,
meaning that if you wanted to protect your copyrights, you had to register the
work with the Copyright Office (you also had to use the copyright notice to put
people on notice that the work was subject to copyright protection). With the current Act, the system
changed to being an “opt-out” system in which all works are subject to
copyright protection from the moment they are “fixed” (is saved in a
sufficiently permanent or stable state to permit it to be perceived,
reproduced, etc.—a digital photograph is “fixed” when it is saved to a memory
card) unless the person creating the work elected to opt-out of the copyright
protections.
The shift from an opt-in to opt-out system was further
complicated by a change in the Act relating to the use of the copyright
notice. In order to make U.S.
Copyright Law consistent with international law, the requirement of using the
copyright notice was dropped for all works published after March 1, 1989.
Q. You mentioned that
legislation was proposed to address the issue. What happened with the legislation?
A. A version of the
legislation passed the Senate, but went no further. While the legislation was pending, the NPPA spoke out
against it. Various organizations,
including the APA, Editorial Photographers, Stock Artists Alliance and ASMP also
issued releases opposing the legislation.
For a more detailed discussion on some of the problems in that
legislation, see my article that appeared in December 2008 Digital Photo Pro magazine entitled “Orphan Works Explored: How will changes in copyright law
affect you and your rights over your photography?” (available on the web: http://www.digitalphotopro.com/business/orphan-works-explored.html
).
Q. What should
photographers do to have their viewpoints on the orphans work issue considered?
A. The Copyright Office has called for comments regarding the
issue, and those comments are due no
later than January 4, 2013 at 5pm. Comments must be submitted electronically, and the Copyright
Office has set up a page specifically intended to be use for such submissions (http://www.copyright.gov/orphan/comment-submission/).
If you have an opinion or viewpoint on the issue that you
would like to have considered, you should submit comments to the Copyright
Office. If you are a member of an
organization such as NPPA or ASMP, you may wish to check with the organization
to see if it is preparing comments for submission. While those comments may not mirror your own viewpoints on
the issue, they may highlight certain issues that will better inform the
comments that you ultimately submit to the Copyright Office.
Samuel Lewis is a Board Certified Intellectual Property law
specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a
professional photographer who has covered sporting events for more than
twenty-five years. He can be
reached at SLewis@FeldmanGale.com or SLewis@ImageReflex.com.
Note: The information appearing in this blog entry is not, nor is
it intended to be, legal advice, and should not be construed as such. Rather, the information is provided
solely for educational purposes by providing general information about the
law. This blog is not a substitute for legal
advice from an attorney licensed to practice in the state where your business
is based or where you live.
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