to add to the outcry, the North American Nature Photography Assn has released an update beseeching photographers to contact their senators:

Last Thursday, May 15, the Senate Judiciary Committee unanimously approved its version of proposed orphan works legislation (S.2913). The Senate version of the bill (discussed further below) would be significantly more damaging to the rights of creative artists than the version advanced in the House of Representatives (H.R. 5889).

A broad coalition of libraries, museums, independent filmmakers, commercial arts organizations such as the RIAA (Recording Industry Association of America) and the MPAA (Motion Picture Association of America) and open access groups such as the Electronic Frontier Foundation has been actively supporting orphan works legislation. It is only the creative artists and groups closely allied with them that oppose the legislation. Nevertheless, a group of artists' organizations that includes NANPA but led largely by PPA (Professional Photographers of America), ASMP (American Society of Media Photographers) and PACA (Picture Archive Council of America) have lobbied successfully to bring about important changes in the bills that were originally introduced in 2006.

The current House bill contains numerous safeguards to protect copyright owners from infringers who claim that works were "orphaned".


Before using an allegedly orphaned work, the user must go through a fairly arduous procedure including filing a notice of use at the Copyright Office. The notice must include a description of the work, a summary of the search conducted, all identifying information found during the search, a certification that a good faith diligent search was performed, the name of the user and a description of the intended uses. A user who fails to file the notice cannot raise an orphan works defense if the copyright owner claims infringement. The Copyright Office must maintain an archive of notices of use.
The Copyright Office is required to certify private databases that facilitate the search for pictorial, graphic and sculptural works. The databases must contain name and contact information for author, name of the copyright owner if different, title of work, a copy of the work (for visual images) or a description "sufficient to identify the work," mechanisms that allow search and identification by both text and image, and security measures to protect against unauthorized access or copying. Use of these will almost certainly become part of the good faith diligent search that is required before a user can use an "orphaned" work defense.
As in the 2006 bill, all that a copyright owner can get by claiming infringement is "reasonable compensation" (as compared with statutory damages and attorney's fees in the case of non-orphan infringement). However, under H.R. 5889 if the user fails to negotiate reasonable compensation in good faith, or fails to make reasonably timely payment of the agreed-upon compensation, the ability to claim orphan works protection is lost.
Useful articles (such as coffee mugs, key chains, t-shirts, etc.) are not uses that can qualify for orphan works protection.
For visual works, including photographs, the effective date of the law is delayed until the Copyright Office has certified at least 2 databases that are available to the public, or Jan. 1, 2013 (whichever comes first).

There are still some important defects in the House bill, including the lack of attorney's fees and some form of statutory damages that are effective mechanisms to enable an artist to be fairly compensated for an infringement. However, given the powerful lobbying in favor of the bill combined with the superficially appealing free-use-of-information argument used by the bill's proponents, the Washington insiders whom I talk to believe that some form of orphan works legislation will be enacted and that artists are best off to try to moderate the legislation rather than try to stand in front of the speeding bus.

The recently reported Senate bill is another matter. Unlike the House bill, it does not require that a notice of use be filed before the use is made in order for a user to claim orphan work status with respect to a work; it does not provide that an archive of the notices be maintained by the Copyright Office or an approved third party.

I have already written to my two Senators and asked that they oppose the current Senate bill unless it is amended to conform to the House bill. There is further information below about communicating with members of the Senate.

Rich Halperin
NANPA President

If you want to voice your views to your U.S. Senators, you can find their addresses, fax numbers and e-mail addresses at http://www.visi.com/juan/congress/

If you are opposed to the Senate bill, you might be interested in a letter sent by a NANPA member to that member's Senators:

Hon. [name of Senator]

Re: S.2913 the Shawn Bentley Orphan Works Act of 2008

Dear Senator [name]:

I am one of your constituents, a professional photographer, and a member of the North American Nature Photography Association. It is crucial to my livelihood as a professional photographer that you oppose S.2913 in its current form. The bill's current language would not only allow, but probably encourage, infringement of my copyrighted photographs and strip me of many of the safeguards provided by the Copyright Act, including the right to receive statutory damages and attorneys' fees. If the bill is enacted in its present form, many photographs will easily become "orphaned", depriving me of a significant part of my much needed income. I urge you to oppose this bill unless it is amended to contain at least the minimal protections for photographers that are now in H.R. 5889, the House orphan works bill. Those protections include, among other things, the requirement that a user file a notice of use with the Copyright Office in order to claim orphan work status with respect to a work and an archive of the notices, to be maintained by the Copyright Office or an approved third party.

Thank you for your attention to this important matter. I hope that you will protect my legitimate interests and prevent the enactment of this bill until it is amended to balance fairly the interests of all parties.

Respectfully yours,
[full name]