Orphan Works?
June 2008

As readers of The Digital Journalist are well aware, we have been a staunch supporter of photographers' copyright since our first issue.

In the United States, photographers, artists and writers enjoy a degree of protection to their intellectual property that is rarely found in other countries. Essentially, copyright is automatically granted to the creators from the moment of inception. Although to be solid enough to stand up in courts, it is necessary to prove that you have registered the photograph, article, song, or other artistic work with the U.S. Copyright Office.

For freelancers or independent creators, it is this copyright that allows them and their heirs to derive income from the sale of their unique work. Since most of these independent creators rarely have secure pensions, the body of the work they have produced over their lifetimes in fact becomes their annuity.

However, in the day of the World Wide Web, major consumers of these works would like to nullify the copyright provisions. Essentially their argument is that on the Web, everything is inherently "free."

So, late last month a pair of "Orphan Works" bills appeared before Congress. The bills would exempt from full protection under U.S. Copyright law millions of pictures – new and old, published and unpublished, even many previously registered with the U.S. Copyright Office.

"Orphan Works" is a term coined to describe created works whose owners cannot be identified or located to ask permission before reproducing the works. A coalition of librarians, historians, educators, documentary filmmakers and anti-copyright crusaders support legislation they say would protect them when using works in presentations and publications.

The problem is that once the protection is lifted, it would become an invitation to lift these rights without consequence. In reality, few if any users of this material would even attempt to go through the trouble of trying to track down who owns what.

Those who support the bill, which includes many large corporations that presently use and pay for these works, point out that without uninhibited access to material, the Web itself would collapse. Their point is that the Web rests on the concept that everything is "free" for all.

To try to explain what is wrong with this point of view, we argue that it is first necessary to understand the difference between RESOURCES and PRODUCTS.

For example, oil is everywhere in the world. It is FREE in its natural state under the ground. It is called a RESOURCE. However, to get the oil from underground requires a few steps. First, who owns the ground that rests on the oil? Whoever owns that ground, which can be purchased, whether it is private or belongs to the state, is the first to benefit. They can sell rights to drill. Then comes the company that drills the well. They bring the oil out of the ground. At this point they are PRODUCING oil. They can then sell their PRODUCT.

The Internet is a RESOURCE. It has no proprietary value. However, to get it into useable form, somebody has to become an Internet service provider, which is "producing" access. At this point it becomes a PRODUCT. TimeWarner, AT&T, Sprint, and many others SELL this PRODUCT.

Let's examine how this concept applies to photography. As many of you know, I took a picture of President Bill Clinton embracing a then-unknown intern, Monica Lewinsky, in Washington, D.C., in 1996. At the point that they embraced, the couple was a RESOURCE. Anyone could have taken a photograph of them. That was FREE. However, once I captured that moment on film, I had created a PRODUCT. That is my intellectual and actual property. Nobody can use that photograph without my permission (or that of my agency) or without compensation.

Yet, it could be argued that since this photograph has become an icon, it really is part of our mutually shared history, and should be exempt from copyright, especially if it is used on the Web without charge.

This whole rationalization is flawed, and maybe even crazy. Information is not free for those who create it. We professionals cannot continue to create without funds, and in the case of news, the public would have a diminished Fourth Estate to turn to when making key decisions for our democracy. As Greg Smith, the chair of the business committee for the National Press Photographers Association argues, "Intellectual property is one of the few, if not the only, product categories that we export more of than we import – the only hope for America's future economic health. Yet we are devaluing it in ways that scare even our trading partners."

That is theft, and these bills will give license to theft.

We urge that our readers in the United States contact their representatives in Congress. These bills have passed mark-up in the House, and are before the Senate. The support for this legislation is overwhelming. However, you, as a content creator, still have a chance to stop these bills.

To contact your legislator please go to: http://capwiz.com where you will find a customizable letter and an easy-to-navigate form.

NPPA's report on the introduction of the 2008 Orphan Works bills: http://www.nppa.org/news_and_events/.

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