Amendment to Orphan Works Bill Causing Problems for Photographers

The law would make it legal for anyone who wishes to use a copyrighted work to do so, after they have a “reasonably diligent” search to locate the owner. The terms of what constitutes a “reasonably diligent” search are not outlined, allowing basically anyone to claim that they used a copyrighted work after conducting their own form of a “reasonably diligent” search.

The latest copyright buzz in the photography world has been about the proposed changes to the Orphan Works Bill. The amendment to the copyright law is designed to allow non-profit libraries, museums, and archives to use copyrighted works if they cannot find the owner to grant them the rights. While this doesn’t sound too dangerous at first, the details of the act have alarmed photographers and artistic associations everywhere.

The law would make it legal for anyone who wishes to use a copyrighted work to do so, after they have a “reasonably diligent” search to locate the owner. The terms of what constitutes a “reasonably diligent” search are not outlined, allowing basically anyone to claim that they used a copyrighted work after conducting their own form of a “reasonably diligent” search.

If a photographer comes forward after they have discovered that their work has been used, they can only sue for the normal license fee, not the attorney fees or any additional damages. The amendment would make it legal and acceptable to use copyrighted work if the user did not know who the owner was, or know how to contact them for permission.

According to The Stock Artist’s Alliance (SAA), the discussion between Congress and leading photographers’ organizations has focused on, “seeking solutions for problems of unidentified creative works and missing creators, while preserving constitutional protections for intellectual property.”

Organizations speaking out against the bill include The Advertising Photographers of America, the National Press Photographers Association, the Stock Artists Alliance, and Editorial Photographers. They are looking to make sure that the "Orphan Works legislation [is] narrowly crafted to serve the needs of the cultural heritage users for whom it was originally conceived – giving them access to truly orphaned works – while protecting the copyrights and livelihoods of artists."

Visit the Legislative Action Center if you would like to write a letter to Congress and to read more about the amendment.
—Kaitlin Tambuscio
Editorial Intern

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