Wonder what the fallout will be if the Orphan Works Act passes? History may lend a clue.
Yes, the outrage (among photographers) continues to boil over the Orphan Works Act, the bill congress is considering, which limits the remedies in a civil action brought for infringement of copyright in an orphan work. I’ve written about it before, but the arguments still seems to be heated. In recent discussions I’ve had (and that I’ve read on other blogs and discussion forums), it’s pretty clear that what people are worried about are that photographers’ rights would be jeopardized, that rampant infringement would take place because it’d be too easy for infringers to establish a work as an “orphan,” and that photographers would not be financially able to protect their copyrights.
While these are reasonable concerns, the question is whether they are justified. Is the language of the bill too broad? How can we test or measure what the real ramifications might be? I had an idea that would help people gain a more realistic perspective on this, and I tested it out on a few people who were vehemently against it. I began by tossing a few hypothetical situations their way. I asked, “How would you feel if…”
- A publisher wants to reproduce your concert photos of a famous band for a book … without asking you, paying you, or giving you attribution.
- The makers of a movie biography of a famous fighter wants to use excerpts of your published footage … without asking you, paying you, or giving you attribution.
- A movie company wants to copy one of your ideas for a photo of a woman, and superimpose the head of an actor on top of it for use on a poster that promotes the movie … without asking you, paying you, or giving you attribution.
- A university wants to download photos on your website to use in an overhead presentation to be used in the classroom for a business course they offer every year … without asking you, paying you, or giving you attribution.
Every person to whom I posed these scenarios reacted with outrage. Then I asked, “Do you think the Orphan Works Act would permit this?” Each said yes. Emphatically. In fact, one person said, “And it’s because of ridiculous and outrageous scenarios like those that we must stop this bill immediately!”
Do you agree?
Here’s what most people don’t realize: All of these scenarios are already permitted by the Fair Use provision of the Copyright Act. In fact, not only are these cases permitted, but they’ve already happened. Moreover, each case (except for one) has been taken to court, and the court has ruled in favor of the user of the work, not the copyright holder.
Another surprise that may shock you: the works in question were not orphaned works; the copyright holders were known in advance, yet were still not contacted by the user. Here are the facts of each of the cases noted above:
- Regarding the reproduction of concert photos in a book: In the case of Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the Second Circuit focused on the fact that the photos that were used had been reduced to thumbnail size and reproduced within the context of a timeline.
- Regarding the makers of a movie biography: the movie was of Muhammad Ali, and the filmmakers used 41 seconds from a boxing match film. The court found that the portion of film that was taken was used for informational purposes. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
- In the case involving the movie poster, a movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. The court ruled that the movie company’s use was transformative because it imitated the photographer’s style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
- As for the university that wants to use a photo from your website in an overhead presentation, this kind of “face-to-face” electronic use of a photo in the classroom has been considered (de facto) Fair Use, and has never been challenged in court. (See here.)
So, what does this have to do with the Orphan Works Act? After all, if things are this bad with existing copyright law, the OWA will only make things worse, right? Well, that’s where we need to gain some perspective, and draw upon history to help us forecast what may happen.
When the Copyright Act was under consideration, there was quite a bit of pushback from artists of all sorts, using arguments you hear today: that the Fair Use provisions are too broad, and that artists will lose the strength of their copyrights, and the ability to file claims would be prohibitive because the expense to do so would be too much of a financial burden for most artists. If works could be used for free, without attribution, or even permission, even though it may be clear who the copyright holder is, a court case is but an uphill, expensive battle. Moreover, the Fair Use provision could apply to anyone at all. The list of permitted uses was so broadly defined, that just about anyone would be able to do anything with a copyrighted work and call it “commentary,” or “satire/parody,” or “news reporting.” Any of these are permitted under fair use, and it’d be an uphill battle to refute such claims..
Were those fears realized? Did that actually happen? The scenarios I described above would make it appear so. But, upon closer examination, history tells a very different story. The cases above are extremely rare exceptions, and were ruled under extremely narrow circumstances. Very similar cases come up far more often that not only don’t get ruled as Fair Use, but continue to set new precedents all the time in favor of copyright holders, not users. Most infringers who use works and try to hide behind the Fair Use provisions fail in court and end up paying large sums of money to copyright holders, including their legal fees.
Why weren’t the fears of the Fair Use Act realized? Simply put, judges know and understand the spirit of what the Fair Use provisions were intended to do: recognize that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public.
Today, I have never read any credible criticism the the Fair Use provision of the Copyright Act, and in the 13 years that I’ve been a pro photographer, never have I heard anyone complain that their businesses are ruined by Fair Use, that they have lost any financial opportunity, that they have had a hard time enforcing their copyrights, or that there is a rampant misuse of images by those who hide behind Fair Use.
In fact, courts have been so “balanced” in their application of Fair Use provisions, that warnings to users about Fair Use are abundant. From Stanford University’s section titled, “Disagreements Over Fair Use”, there’s this:
“… there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies–but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.”
Sound familiar? I’ll come back to that soon.
Comparison with the Orphan Works Act
With the history and evolution of copyright law in perspective, we can perhaps take a more sober look at the Orphan Works Act. There are four main aspects about the OWA that worry people:
- What constitutes a work as ‘orphaned’?
- Who is eligible for exemption from damages?
- What uses are eligible by those exempted entities?
- Remedies are so limited that it makes litigation impractical, thereby giving potential infringers a de facto “free reign” to infringe.
I will address the question of what constitutes a work as an orphan last, for reasons that will become clear at that time.
First, who is eligible for exemption? Both the house and senate versions of the bill specifically limit eligibility to “nonprofit educational institutions, libraries or archives, or public broadcasting entities.” (Section 2(c)(1)(B)) That’s it. Full Stop. It does not include commercial entities, non-profit companies, broadcasting organizations, magazines, newspapers, publishers of schoolbooks, or anyone else. No one. Because the only people that could be “protected” by the OWA is so limited, the OWA’s provisions are already far narrower than what Fair Use provides. And since Fair Use is open to anyone, OWA is already much better for photographers than Fair Use is, and as we’ve established, Fair Use isn’t hurting the industry, nor is it causing rampant infringements. Therefore, OWA’s far more limited scope cannot possibly cause harm.
Second, what are the restrictions of uses under the OWA? As stated in Section 2(c)(1)(B), “there must be no direct or indirect commercial advantage, and the use may only be educational, religious, or charitable in nature.” Again, this is far more restrictive than Fair Use, which may include parody, satire, commentary, news, and all sorts of uses, any of which can be commercial in nature as well. And again, since no one is losing money or rights of ownership of their copyrights under Fair Use, worries about the implications of the OWA are warrantless.
As for the claim that remedies would be so limited that it would be prohibitive for photographers to make claims, this is stealing the other side’s argument. Remember the quote I used above that came from the Stanford site for Fair Use? The real financial risk is taken by the users of images, since they are more likely to be sued by photographers for infringement. It’s far more expensive to defend yourself than to sue, especially because courts put the burden of proof on the defense, not the plaintiff. Copyright holders need do nothing more than make a claim and prove that they own the work; it’s the defense that has to prove to the court that they are an eligible entity, that the use is non-commercial in nature, that it is for educational uses, and lastly, that the work has been unambiguously ‘orphaned.’ And since the only people who would be eligible to hide behind OWA anyway would be a very narrow group of non-profit companies who usually can’t afford the legal fees or the public humiliation (especially since these organizations have to raise money from donations by citizens), it is more likely that these entities are not going to risk using what “might” be an orphaned work. It just isn’t worth the risk. So, the claim that photographers would be hampered with a financial burden because of OWA are unfounded.
And now I come to the question of establishing whether a work is orphaned or not. To some degree, it would have taken a lot to even get to this point in the first place. That is, determining whether a work is an orphan doesn’t even get asked unless (1) the entity being sued for infringement is a non-profit school, a PBS station, or a library; and (2) that the use of the work had no direct or indirect commercial advantage, and that it was for educational use only, or for the public good. It is then and only then would the question even come up as to whether the photo was actually an “orphan” or not. And frankly, at this point, it is more likely that the defense will claim that the use of the photo falls under Fair use provisions anyway. All things considered, it’s a much easier case to shown than trying to convince a judge that the photo was orphaned.
Granted, that may not necessarily be the case. So, let’s finally examine that question of whether a photo would be considered an orphan. It is, after all, one of the pinnacle points of dissent from most photography groups, so it warrants a cogent response. To cite an example, the APA’s official document has a section that states:
… the fallout from this bill, whether intended or not, will necessitate that rights holders register their works, professional or personal, published or unpublished, with as-yet-to-be-created private, commercial registries, i.e. databases. Why? Because as users come to rely on these databases to conduct a “reasonably diligent search” for rights holders, any works not found in these databases could potentially be infringed as orphans.
The nutshell of this paragraph presumes that, unless a photo is in a OWA-sanctioned database, then it can be considered an orphan. And it is infeasible, if not impossible, to expect all persons to register their works in those databases, for if they don’t, their works could be infringed upon.
Well, we’ve already established that the only people who could be eligible to make that infringement is so narrow, that it eliminates virtually the entire world. And the license fees for the kinds of uses that would be employed by such entities are notoriously slim. So, the loss of financial opportunity is hardly significant. But, we weren’t talking about that–we were talking about whether the work would be considered an orphan.
While the OWA bill clearly states that those who intend to use a work must do a “diligent search” in those databases to find the owner of a work, it does not say that a failure to find the work immediately establishes the work as an orphan. More importantly, it doesn’t satisfy a pivotal aspect of real-world scenarios in court: judges are human. This brings into account two important factors. First, as stated above about Fair Use, judges know what the intent of the OWA is: to protect users from being sued if their use in the public interest…much like Fair Use is. And secondly, there are factors such as a judge or jury’s personal sense of right or wrong. The question in their minds isn’t really whether the work is genuinely orphaned, it’s more likely going to be whether a reasonable person would assume it to be. If the photo in question is obviously current, and that it can be found on the internet at all, then it’s very likely that a reasonable person would assume that it’s owned by someone and that the copyright’s lifetime hasn’t yet expired. It’s not just whether a work is an orphan, but whether a reasonable person would assume it to be. Judges and juries aren’t stupid.
And neither are the lawyers that work for these non-profit institutions. Leaders of photography interest groups would like you to believe that these companies’ lawyers are gritting their teeth, telling their production staff, “Sure! Go ahead and use the photos! We’ll just hid behind the Orphan Works Act, and the photographers will never be able to afford to sue us.” In reality, however, when the suit does come, that lawyer is going to find the real-world of the courtroom to be quite different, and it’ll start costing that non-profit a lot of money to defend. Assuming a photo is an orphan, even if not found in a database, would be a very risky move on the part of the publisher, as their new, smarter lawyers will probably advise.
In summary, just about every objection to the Orphan Works Act is based on suppositions and conjectures that have not been supported by history. As we’ve learned by having lived with the Fair Use provisions of the Copyright Act, courts don’t easily rule against copyright holders, despite how broadly the language of the law was written. And since the Orphan Works Act is so much narrower than Fair Use, it is unreasonable to accept any of the fears that detractors would have you believe.
The saddest part of all this is that because the collective voice of photographers has been so bombastic, yet so uninformed and militant on this issue, that our voices will be dismissed yet again, and the group’s perception will take yet another tumble. The perception of our leadership taking such staunch and dramatic stances on such baseless grounds, makes it harder to be heard when it comes time to press for (and get) those legislative agendas we really need.
