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Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


Given that the OP of the original topic didn't want to  have discussion in his link to the text and analysis of the bill, I figured that this would be a good thing...

Anyway, I do feel that this is a good bill. It works hard to allow for public access to and use of orphaned works while bending over backwards to try creators as well. Granted a blanket "no penalties at all for people who go through the process in good faith" would have been nicer than the included "penalties are limited" language, and some protection for users of abandoned works (works that haven't been in print for, say, at least ten to fifteen years) would have been nice as well. Still, you can't have it all.
Apr 28 08 05:49 pm  Link  Quote 
Photographer
Monito -- Alan
Posts: 16,524
Halifax, Nova Scotia, Canada


Track the Orphan Works Bill now in Congress.  Protect your rights:
http://www.asmp.org/news/spec2008/orphan_update.php
Text of the bill:
http://www.govtrack.us/congress/billtex … =h110-5889
Apr 28 08 06:00 pm  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


My concern is for foreign works. Those created and copyright protected outside the US.

It would appear that such works may not receive very much protection of copyright in the US at all unless the creator can be identified in the US databases, thus forcing US registration.

The text of the bill is totally unclear as to that issue. The international treaties and conventions generally provide that if, for instance, a foreign copyrighted work is infringed in the US that the infringer may be sued in the US and the copyright will receive the same protection as is available in the US to works of US origin PROVIDED that any formalities in the home country have been complied with. MANY countries do NOT have ANY registration formalities.

This bill MIGHT reduce the protection of non-US works to virtually nil and particularly affect foreign works where the ownership of copyright could reasonably be shown not to be searchable in the US databases as well as there being no registration required in may countries so there are also no foreign databases that could be referenced, and, as a consequence, allowing the defence of orphan works in cases where it should not be available.

In some respects this could do just what it says on the tin: act as a thieves charter for US based infringers of, in particular, works of foreign origin.

The international treaties and conventions, to which the US is a signatory, not only do not mandate registration, in fact they discourage mandatory registration in obtaining fundamental copyright protection, but this unilateral US action, if passed into US domestic law, could undermine that dynamic completely.

The other thread is here:
http://www.modelmayhem.com/po.php?thread_id=282201

Studio36
Apr 28 08 06:30 pm  Link  Quote 
Photographer
Jerry Bennett
Posts: 2,199
Philadelphia, Pennsylvania, US


Madcrow Photographics wrote:
Given that the OP of the original topic didn't want to  have discussion in his link to the text and analysis of the bill, I figured that this would be a good thing...

Anyway, I do feel that this is a good bill. It works hard to allow for public access to and use of orphaned works while bending over backwards to try creators as well. Granted a blanket "no penalties at all for people who go through the process in good faith" would have been nicer than the included "penalties are limited" language, and some protection for users of abandoned works (works that haven't been in print for, say, at least ten to fifteen years) would have been nice as well. Still, you can't have it all.

How the hell can a photographer support this law? It was originally designed so that large institutions and corporations could steal the creations of individual artists and not have to worry about law suits. Thank god asmp screamed their bloody asses off about it and got at least a little protection for the creators!

Apr 28 08 07:16 pm  Link  Quote 
Photographer
Patrick J Dempsey
Posts: 574
Asheville, North Carolina, US


It seems like this bill would also open up infringement of private works such as family vacation photos which are currently protected with inherent copyright upon creation.  I'm a very prolific and poor artist... I don't have the time or money to register all of my works... 2013 is only 5 years away!  How many MORE works will I create in that time period that will need to be registered.  This whole thing scares the crap out of me!
Apr 28 08 07:42 pm  Link  Quote 
Photographer
joeyk
Posts: 14,570
Seminole, Florida, US


As it is explained to me, the bill would in my case remove my rights : I have moved my studio 1200 miles and by doing so basically given up the right to protection as the client could just not find me and then the works are orphaned. Again, as it is explained to me, the responsibilty to remain "findable" to my client is all mine...
Apr 28 08 09:32 pm  Link  Quote 
Photographer
digital Artform
Posts: 49,326
Los Angeles, California, US


Meanwhile there are hundreds of thousands of people every year putting their work into envelopes and mailing it unsolicited to large corporations, only to have those envelopes get returned unopened or pitched into the garbage on arrival.
Apr 28 08 09:34 pm  Link  Quote 
Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


Jerry Bennett wrote:

How the hell can a photographer support this law? It was originally designed so that large institutions and corporations could steal the creations of individual artists and not have to worry about law suits. Thank god asmp screamed their bloody asses off about it and got at least a little protection for the creators!

The ASMP actually supports the current version, btw...

Any way. I support it because why I like to see work protected, I also like to see work be widely available, even if the copyright holder can't be found. It seems like this bill is the best chance we have to try and meet both ends of the spectrum.

Apr 29 08 07:18 am  Link  Quote 
Photographer
J C KUNSTFOTOGRAFIE
Posts: 2,691
Los Angeles, California, US


Madcrow Photographics wrote:
. . . I also like to see work be widely available, even if the copyright holder can't be found. It seems like this bill is the best chance we have to try and meet both ends of the spectrum.

You want a license to steal, in other words.

Apr 29 08 07:26 am  Link  Quote 
Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


J C KUNSTFOTOGRAFIE wrote:

You want a license to steal, in other words.

If the copyright holder for a work can't be found after a legitimate good faith effort to find the copyright holder, why should that mean that a work becomes unavailable for use? Why is it that certain people would rather that work just plain disappear if its creator does?

Apr 29 08 07:39 am  Link  Quote 
Photographer
Monito -- Alan
Posts: 16,524
Halifax, Nova Scotia, Canada


Madcrow Photographics wrote:
If the copyright holder for a work can't be found after a legitimate good faith effort to find the copyright holder, why should that mean that a work becomes unavailable for use? Why is it that certain people would rather that work just plain disappear if its creator does?

What defines a good faith effort, and what defines an orphan work?  These are crucial issues.

If a shady company or person pays somebody to take your best photo and strip off all identifying information such as the EXIF and IPCT and Adobe PS data and then puts it on a large website like flickr or some forum anonymously for the crook to find it, then you have lost control of your image because they can claim it is an orphan image.

Apr 29 08 07:45 am  Link  Quote 
Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


Monito -- Alan wrote:

What defines a good faith effort, and what defines an orphan work?  These are crucial issues.

If a shady company or person pays somebody to take your best photo and strip off all identifying information such as the EXIF and IPCT and Adobe PS data and then puts it on a large website like flickr or some forum anonymously for the crook to find it, then you have lost control of your image because they can claim it is an orphan image.

That's cheating though. I'm talking about people who actually do what they're supposed to do under the law.

Apr 29 08 07:55 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


Monito -- Alan wrote:
What defines a good faith effort, and what defines an orphan work?  These are crucial issues.

If a shady company or person pays somebody to take your best photo and strip off all identifying information such as the EXIF and IPCT and Adobe PS data and then puts it on a large website like flickr or some forum anonymously for the crook to find it, then you have lost control of your image because they can claim it is an orphan image.
Madcrow Photographics wrote:
That's cheating though. I'm talking about people who actually do what they're supposed to do under the law.

No "cheating" is even necessary.

On close reading of that bill you will see that, even if your data stays with the image, even if there is a BIG FAT copyright notice on the face of it [©2004 Xxxxxxxx], if you can not be geo-located [to an address] then it can STILL be treated as an orphan work. The user will file a notice of intended use, serving as a public notice to you of their intentions, and it is up to YOU to discover that filing.

Studio36

Apr 29 08 07:58 am  Link  Quote 
Photographer
J C KUNSTFOTOGRAFIE
Posts: 2,691
Los Angeles, California, US


Madcrow Photographics wrote:

If the copyright holder for a work can't be found after a legitimate good faith effort to find the copyright holder, why should that mean that a work becomes unavailable for use? Why is it that certain people would rather that work just plain disappear if its creator does?

Ever heard the term "dilution of value"??? 

It's people like you who are working to diminish the value of photography and are helping to destroy photography as a profession and a means to make a living.  Shame on you!

Apr 29 08 08:11 am  Link  Quote 
Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


J C KUNSTFOTOGRAFIE wrote:
Ever heard the term "dilution of value"??? 

It's people like you who are working to diminish the value of photography and are helping to destroy photography as a profession and a means to make a living.  Shame on you!

I'm all for protecting information. Even I, who freely license my work under a Creative Commons (Attribution-Noncommercial-No Derivative Works) license want to get paid if, for some reason, someone actually wanted to use it in a commercial context...

BUT, I also feel like there should be SOME kind of ability for people to use work whose authors have truly disappeared from the scene and are unfindable...

Apr 29 08 08:36 am  Link  Quote 
Photographer
J C ModeFotografie
Posts: 14,718
Los Angeles, California, US


Madcrow Photographics wrote:

I'm all for protecting information. Even I, who freely license my work under a Creative Commons (Attribution-Noncommercial-No Derivative Works) license want to get paid if, for some reason, someone actually wanted to use it in a commercial context...

Then why are you supporting this bill???

Apr 29 08 08:41 am  Link  Quote 
Photographer
Madcrow Photographics
Posts: 7,802
Boston, Massachusetts, US


J C ModeFotografie wrote:

Then why are you supporting this bill???

See the second part of my post. I think that they need you need to balance the two aspects.

Apr 29 08 08:52 am  Link  Quote 
Photographer
Hermesz Fine Art
Posts: 2,037
Westminster, Colorado, US


Monito -- Alan wrote:
What defines a good faith effort, and what defines an orphan work?  These are crucial issues.

The problem as I see it is, "Good Faith Effort" is too broad and ill defined. I opens the doors for abuse.

In the current Copyright registration process, registering a single image will cost $45. You may also register an unlimited number of images for the same price when you register them in the same registration package. Additionally, there is a Beta program that will allow you to do this on line, saving time and paperwork.

John

Apr 29 08 08:55 am  Link  Quote 
Photographer
Lumigraphics
Posts: 32,652
Detroit, Michigan, US


The bigger problem is that current IP law has been distorted beyond all recognition. The world doesn't need band-aids, there needs to be a complete, top-down rewrite of IP laws.
Apr 29 08 08:57 am  Link  Quote 
Photographer
J C KUNSTFOTOGRAFIE
Posts: 2,691
Los Angeles, California, US


Madcrow Photographics wrote:

See the second part of my post. I think that they need you need to balance the two aspects.

Oh yes - keep "compromising" and "compromising" until we, as photographers, have nothing left.

Apr 29 08 09:34 am  Link  Quote 
Photographer
Patrick J Dempsey
Posts: 574
Asheville, North Carolina, US


Madcrow Photographics wrote:

That's cheating though. I'm talking about people who actually do what they're supposed to do under the law.

This is exactly what Congress and the Copyright Office expect with this bill... that no-one would abuse the system and everyone would play fair.  I'm not sure what planet THEY are from, but here on Earth people will do anything they can for free lunch.  Hiring a guy to sift through people's images posted online with the intent of stealing them will be way cheaper than hiring a team of artists or even paying a stock image agency for their work.  Laws are not made assuming all people will act in good faith.  Laws are made assuming that the people who are not going to act in good faith, will do so regardless of the law, and provides a means for prosecuting those individuals.  This bill does the exact opposite of that... it gives a free license for copyright theft and even outlines the things you have to do to legally get away with it... while crippling the rights of the owner of the work by making it nearly impossible to prosecute. 

And my biggest question is... who and want exactly is being hurt by current copyright law?  In the past and currently, if an agency wanted to use a work that was "orphaned" then it simply hired an illustrator to create a similar work, and as long as it was just different ENOUGH, it didn't break copyright law.  Hell, I've seen so many magazine covers that were DIRECT copies of famous, copyrighted works of art that it makes it really hard for me to believe that these same people would shy away from copying unfamous works of unknown copyright.  In an interview posted on the Illustrator's Partnership website there is an important quote.... "Even if you don't know who made this work of art, you absolutely know that YOU didn't make it!"   Using artwork that you didn't make and that you don't have a license to use, is theft, plain and simple.

Apr 29 08 02:45 pm  Link  Quote 
Photographer
OLJ studio
Posts: 1,550
Winnetka, California, US


Madcrow Photographics wrote:
BUT, I also feel like there should be SOME kind of ability for people to use work whose authors have truly disappeared from the scene and are unfindable...

For what purpose?
Not every purpose requires license.

Please list those that require license and explain why/in what context you have pressing need to use somebody’s image instead of creating yours (or hiring photographer to create one for you?)

Apr 29 08 03:19 pm  Link  Quote 
Photographer
Jhono Bashian
Posts: 2,427
Cleveland, Ohio, US


there are some new articles at the ASMP.org site
May 07 08 02:26 pm  Link  Quote 
Photographer
redwoodtwig
Posts: 256
Columbia, Missouri, US


A page with form letters to send if you don't like the proposed orphaning law.
http://capwiz.com/illustratorspartnership/home/
You can send a canned one and the page will take care of getting it to your senators and representative.  There's also a link for international photogs to write to the appropriate officials.
May 07 08 07:06 pm  Link  Quote 
Photographer
joeyk
Posts: 14,570
Seminole, Florida, US


J C KUNSTFOTOGRAFIE wrote:
You want a license to steal, in other words.
Madcrow Photographics wrote:
If the copyright holder for a work can't be found after a legitimate good faith effort to find the copyright holder, why should that mean that a work becomes unavailable for use? Why is it that certain people would rather that work just plain disappear if its creator does?

The issue is proving legitimate good faith effort, portrait clients routinely go to a Kodak copy station as it is...

They'll just have to say they tried and your copyrights are gone!

May 07 08 07:10 pm  Link  Quote 
Photographer
joeyk
Posts: 14,570
Seminole, Florida, US


redwoodtwig wrote:
A page with form letters to send if you don't like the proposed orphaning law.
http://capwiz.com/illustratorspartnership/home/
You can send a canned one and the page will take care of getting it to your senators and representative.  There's also a link for international photogs to write to the appropriate officials.

Didn't they vote on this today at 2?

May 07 08 07:13 pm  Link  Quote 
Photographer
Jared Holder
Posts: 1,608
Speightstown, Saint Peter, Barbados


There is a debate going on here:

http://photobusinessforum.blogspot.com/ … ivity.html

Some good points were made.
May 28 08 01:37 am  Link  Quote 
Photographer
Andy Pearlman
Posts: 3,411
Los Angeles, California, US


Madcrow Photographics wrote:
If the copyright holder for a work can't be found after a legitimate good faith effort to find the copyright holder, why should that mean that a work becomes unavailable for use? Why is it that certain people would rather that work just plain disappear if its creator does?

If its MY work, shouldn't I have the right to control it and decide if I want it to disappear? No one else helped me create it, no one else paid for my equipment, no one else paid for my business and living expenses so I could create it. Why should all those people be able to show up after I've done all the work, and steal it to their benefit?

There is also the issue of models... Will they be able to sue photographers if their likeness is used, claiming the photographer didn't work hard enough to protect the image?

There are so many unanswered questions, such a huge can of worms. What happens if someone finds an image of mine online, that someone else scanned and stripped out any identifying marks on, and then the new person "claims" they couldn't find the owner (what if they didn't go to the correct private registry?), so they go ahead and not only use my image, perhaps in conflict with some use I have planned, but they then register the image as theirs? Can you imagine the time and legal costs that one scenario would take to unravel? Does anyone have that kind of time, when they don't have to work?

IMO, there is nothing good about the new bill, the old law is just fine. The old law protects the photographer, with no effort from him. The new law requires the photographer to work overtime to acquire protection that isn't as effective as what he had before. Please read the APA position here (its better than ASMP's), http://www.apanational.com/files/public … _2008.pdf.

May 28 08 05:48 am  Link  Quote 
Photographer
ToddLH
Posts: 257
Delray Beach, Florida, US



Dear Mr. L'Herrou:

Thank you for contacting my office regarding your opposition to the Orphan Works Act of 2008, H.R. 5889.  I appreciate your views on this issue, and I welcome the opportunity to respond.

While I do stand in strong affirmation of the general idea of this legislation, I understand your concerns about over-broad definitions and potential unintended consequences.  As you know, H.R. 5889 limits the remedies in a civil rights lawsuit brought for infringement of copyright on an orphan work if the infringer can prove that he had performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work.  I stand in affirmation of the legislation’s goal, but I have concerns about the definition of what constitutes an orphan work and what constitutes a diligent search.  As is, this legislation runs the risk of allowing excessive instances of copyright infringement.  Hopefully, as this bill proceeds through committee and debate, it will become more specific and include defined limitations on what sources are to be considered orphan works.

As a member of the Subcommittee on Courts, the Internet, and Intellectual Property, I have ardently fought on behalf of small business owners to protect them from intellectual property infringement. As such, I appreciate your comments regarding this pertinent issue.  To an extent, legislation of this type is necessary in order to allow museums and nonprofit organizations to more easily provide their services to the public. This legislation would enhance the current source databases by allowing more works to be offered to the public, which would bolster the educational purpose that they were created to serve.  Please know that I will be following this issue closely as debate continues.

Thank you again for taking the time to write. Please feel free to contact me with any additional questions you may have or anytime I may be of assistance to you. If you would like to be updated on these and other issues, please stop by my website (www.wexler.house.gov) and sign up for my electronic newsletter. I hope you will find these tools to be valuable in keeping up with events in Washington and South Florida.

                                             With warm regards,

                                             Robert Wexler
                                             Member of Congress


Congressman Wexler sits on the Subcommittee on Courts, the Internet, and Intellectual Property, I wrote to him to express my concern in general, and as Chair of a Chamber of Commerce within his congressional district.
Jun 09 08 10:33 am  Link  Quote 
Retoucher
Kevin_Connery
Posts: 3,305
Fullerton, California, US


July 29 press release by Senator Leahy
I am disappointed that another unrelated intellectual property bill, the Shawn Bentley Orphan Works Act, is being stalled from Senate passage by an anonymous Republican hold. It was during the Judiciary Committee’s consideration of that legislation that Senator Brownback requested that we hold this hearing. I have held it. I hope he will now join with Senator Hatch and me and will work to remove the impediment to passage of the Shawn Bentley Orphan Works Act so that we can make progress on behalf of the American people without further delay.

There's still time to contact your Senators.

Jul 31 08 11:20 pm  Link  Quote 
Photographer
a HUMAN ad
Posts: 1,148
Miami Beach, Florida, US


Other thread regarding copyright and images being stolen from MM

http://www.modelmayhem.com/po.php?threa … age=1#last
Jan 16 10 09:01 am  Link  Quote 
Photographer
Monito -- Alan
Posts: 16,524
Halifax, Nova Scotia, Canada


[b]a HUMAN ad wrote:  [b]Other thread regarding copyright and images being stolen from MM

http://www.modelmayhem.com/po.php?threa … age=1#last

The other thread?  There are many many threads about copyright theft that have been posted on MM and you revived an 18 month old zombie thread on a distantly related topic.  Not quite right.

Jan 16 10 09:07 am  Link  Quote 
Photographer
Vanishing Point Ent
Posts: 1,688
Los Angeles, California, US


Andy Pearlman wrote:
If its MY work, shouldn't I have the right to control it and decide if I want it to disappear? No one else helped me create it, no one else paid for my equipment, no one else paid for my business and living expenses so I could create it. Why should all those people be able to show up after I've done all the work, and steal it to their benefit?

There is also the issue of models... Will they be able to sue photographers if their likeness is used, claiming the photographer didn't work hard enough to protect the image?

There are so many unanswered questions, such a huge can of worms. What happens if someone finds an image of mine online, that someone else scanned and stripped out any identifying marks on, and then the new person "claims" they couldn't find the owner (what if they didn't go to the correct private registry?), so they go ahead and not only use my image, perhaps in conflict with some use I have planned, but they then register the image as theirs? Can you imagine the time and legal costs that one scenario would take to unravel? Does anyone have that kind of time, when they don't have to work?

IMO, there is nothing good about the new bill, the old law is just fine. The old law protects the photographer, with no effort from him. The new law requires the photographer to work overtime to acquire protection that isn't as effective as what he had before. Please read the APA position here (its better than ASMP's), http://www.apanational.com/files/public … _2008.pdf.

People Nothing Good will come of this; not for us.
We don't pay Congress enough, to get " our " way.
This bill isn't for us.

If you want a copyright bill for us,
look at the Bourne Convention.
When the Senate was forced to pass it,
by international treaty, there was a prevision in the bill,
not allowing it, to apply in cases of U.S. Copyright Law.

This opened up the possibility, of increasing the power
of an individuals, copyright power, by forming a
European Cooperative & licensing all Copyright
management that way.  The treaty clearly stipulates that
the Bourne convention would take precedent over U.S. Law.

This law is a way around this loophole.
So the law may turn out to be unconstitutional,
at least as far as the foreign works part goes.

But it will take a lawsuit to prove it.
The failure of our legal system,
I believe is that law is never decided as written.
It takes the courts to interpret it.
This takes lots of money !

Now I know that people have fought & died for our
right to do this.  And I know that not everyone even
has this right.  But it would be nice if something as
important as this would be written so that everyone
would understand what was meant & of course that
there was enough teeth in it, to compel thieves to
obey the law.

But that's not how it is now.
So to sum up, this bill has plenty of unintended consequences,
If you don't believe me, look at 2257.
Talk about unintended, ( ? ), consequences.

Jan 16 10 11:57 am  Link  Quote 
Photographer
a HUMAN ad
Posts: 1,148
Miami Beach, Florida, US


Jan 16 10 01:23 pm  Link  Quote 
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