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Photography Question 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
 

Calling all Photogs - Orphan Works Act of 2008


Below are two links. The first is a link to an explanation of what this bill is. The second is a link to a website that is hosting an online petition that takes two minutes to sign if you would like to help try to stop this legislation from passing.

All you pros out there especially, should take a strong look at it because this bill is just another nail in the coffin of your business.

http://www.opencongress.org/bill/110-h5889/show

http://www.PetitionOnline.com/Stop2913/


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6/18/2008 11:09:26 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Oops, left one important thing out. United States photogs only!


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6/18/2008 11:10:57 AM

 
Marianne Fortin
BetterPhoto Member Since: 1/23/2006
  More info here:

http://www.asmp.org/about/hot_issues.php


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6/19/2008 6:35:07 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Thanks Marianne. Mark Feldstein sent me that link last night and I just haven't had time to post it.


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6/19/2008 11:08:57 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  This is an issue too big for photographers, whether pros or not, to ignore. As I told Todd yesterday:

This is something the republicans have been trying to railroad through
congress for years. It only has those two positive points I mentioned but those positive aspects are illusory.
Nothing more. This proposal takes copyright away from photographers by essentially stating if a prospective photo publisher/user and/or infringer.
wants permission to use a photo, they merely need to look in a data base of photographers, one of many should suffice, to claim they exercised "due diligence to find the photographer. If they can't find the photographer that way, the work is considered "orphaned" or abandoned and fair game for use with a minimum penalty for infringement if they even get caught.

Proponents argue that the bill promotes fair use, makes a streamlined set of procedures for photographers to get legal relief for infringement (which is a small-claims-like action in the federal courts), reduced penalties for various types of infringement. It basically undercuts the Bono amendments to the copyright amendments.

Every Democratic Congressional rep I've heard of so far, seems to be against this, as are our senators and all the pro organizAtions like ASMP, NPPA, etc. Check out their web sites.
Todd's senator gave him what I believe is a a fair spin on a complicated bill.

We should all let our elected representatives know how we feel on this issue and to get a response, rather than a boilerplated one ducking your question, ask them point blank how they voted on the other attempts to pass this. Don't take this one light. Read the info available, paying particular attention to the info put out by prof. orgs advocating against this bill's passage.
M.


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6/21/2008 9:57:02 AM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  I donít think this is a Republican vs. Democrat bill or issue at all. H.R. 5889 (Orphan Works Act of 2008) was introduced on April 24th of this year and is sponsored by California Democrat Rep. Howard Berman. The three co-sponsors of the bill include another Democrat, Rep. John Conyers of Michigan along with two Republicans, Rep. Lamar Smith of Texas and Rep. Howard Coble of North Carolina. Smith was the original sponsor of the now dead 2006 Orphan Works bill.

As a professional, I agree this is a matter that requires careful attention. Too much is at stake and the current structure of the bill will have a negative impact on professional photographers rights to their work.


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6/21/2008 11:23:34 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  The adverse impact, IMO, is on ANY photographer, professional or not and I think that's important as well. BTW, the proposed bill negates the registration provisions with the copyright office. Hence, a cost-savings measure, which is also illusory in that it helps save the government money by balancing the budget on the backs of photographers who need copyright protections as they currently stand, in order to earn a fair return on their skills.
M.


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6/21/2008 11:37:31 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Regardless of who, repub or demo, this stands to impact every photog and not just the pros.


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6/21/2008 12:00:48 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  Yes it does impact all photographers and Iím not trying to suggest it doesnít. But let's be realistic, the pros stand to loose the most and that is why I speak in such single dimension. You even said yourself, Todd, that pros especially should take caution with this bill. Iím just echoing those same concerns, as a pro.


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6/21/2008 12:16:22 PM

 
Carolyn  M. Fletcher
BetterPhoto Member Since: 10/6/2001
Contact Carolyn
Carolyn 's Gallery
PickYourShots.com
  I'm not a pro, but I signed it for you guys.


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6/21/2008 1:44:50 PM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Thanks Carolyn. It does affect all of us.


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6/21/2008 2:08:16 PM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  RE: "Every Democratic Congressional rep I've heard of so far, seems to be against this, as are our senators and all the pro organizAtions like ASMP, NPPA, etc."

I just looked at the ASMP link ... they say they SUPPORT the HOUSE version of the bill. They oppose the SENATE version because it lacks provisions included in the house bill.

They also say a "simply say no" approach is unrealistic as they expect some version will pass eventually and by just opposing all versions we will weaken our ability to influence the specifics included in the bill.

They also listed a number of major artist organizations that support the HOUSE version of the bill and claim thier position to be among the majority.

Finally, they also say they would remove thier support if the provisions they like are not included in any final version of the bill.

dvc


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6/21/2008 8:00:09 PM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  Oh, btw, while the pro's may indeed seem stand to loose the most, it would seem to me that they are also the most likely to be easily found, most likely to belong to pro organizations and most able and capable to insure protection of thier copyrights.

From that pov, if I am correct, it really is the amatures that stand the most to lose, as we don't tend to register with databases, actively promote our works or seek to discover and act against infractions against our rights and can typically be very difficult to find.

Yet, our posted images (and other copyrighted works) abound across the internet, probably in far, far larger numbers than those of pros.

Keep in mind that one of the compelling arguments FOR the Ophans act is the holocost museum's desire to post / publish images for which the copyright owner cannot be found or identified. I'm willing to bet large numbers of small worthless coins that the vast majority of such owners are NOT pros.

I, btw, do NOT support the ASMPs position. I would support a version that was limited to historical or similar(inter)national interests only.

However, the ASMP says such restriction is both unlikely and unrealistic.

dvc


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6/21/2008 8:15:30 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  DVC says: "Keep in mind that one of the compelling arguments FOR the Ophans act is the holocost museum's desire to post / publish images for which the copyright owner cannot be found or identified. I'm willing to bet large numbers of small worthless coins that the vast majority of such owners are NOT pros."

I haven't the slightest idea what the Holocost Museum has to do with this issue and where you're getting your information from. If I were to hazard a guess and contact some of the people at Shoah Foundation, which I've contributed my own work to, my guess is that most, if not all that work, has entered the public domain by virtue of the time it was created and the deaths of the authors.

DVC also said: "I do NOT support the ASMPs position. I would support a version that was limited to historical or similar(inter)national interests only."

I don't understand exactly, who would benefit from that other than yourself, or how you could separate one from the other and who do you think would be available to make that determination. Some committee no doubt paid for with government funding? Why not just leave the present system and THAT funding alone?

I have no doubt, however, that Dave would disagree with the ASMP position, NPPA, Editorial Photographers, Advertising Photographers of America, SPAR, The Illustrators Organizations, ad infinitim. Your particular version as opposed to the ASMP model would read approximately what, for example?

Lastly David, I don't think you quite get the data base usage as to what constitutes due diligence on the part of a potential publisher. But yes, everyone who uses a camera for any purpose stands to lose if this thing passes. Professionals and amateurs. I don't know exactly how you could quantify one group over the other. Usage without fees is usage without fees. Professionals negotiate usage all the time. "Amatures" (SIC) more often than not, may not know how to negotiate usage rights, but that in itself doesn't disentitle them to non-payment of legitimate fees for usage of protected and registered work. Anyone disagree with that reasoning?
M.


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6/21/2008 11:39:06 PM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  David,

I don't think anybody here has adopted a blanket "say no" policy here. The senate version simply makes it too easy to take someone's work. One analogy used is 2 thugs walking down a street. They see a car they want and look around and don't see the owner. They ask a couple of people that walk by if they own the car and neither person they ask owns it. So they steal it. Is that due diligence? I think not. If you agree with the senate version then that is what you are advocating.

The theft of a photo is, in itself, bad enough; but, then there are the limits this bill is going to put on the photog to get the money he is due in the event he finds his photo used without his permission.


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6/22/2008 3:51:01 AM

 
David Van Camp
BetterPhoto Member Since: 1/27/2008
  I disagree with BOTH the house & senate versions. I don't think *any* bill that allows negating copyright is good. A special case for national public interest might be a reasonable exception.

As per Holocast musesum... read the info on the ASMP site. I would expect most have entered the public domain, too, but that's what they said.

You might notice that the ASMP says they do not like the house bill either, they just consider it better than the Senate bill. I think that's not a great reason to support a bill.


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6/22/2008 12:21:19 PM

 
Frederick R. Walker
BetterPhoto Member Since: 3/12/2004
  I really see why this could be bad for any photographer. I like the analogy of the two thugs, that is so true. There is more to it though. It seems to me that this could heavily influence the stock side of photography. I could be mistaken about this but that is just the way that it appears to me.


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6/23/2008 8:19:50 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Yep Fred. Absolutely and exactly it would influence the stock market, and IMO adversely. Imagine if a publisher has a photograph with a copyright logo on it, one that was actually registered with the copyright office, year, etc. Imagine further if that publisher could open up their desk drawer looking for the name and contact info on a photographer , doesn't see that info looking back at him/her so they determine it can't be found, he closes the drawer and says "Not in there. Must be an orphan photo. Too bad. In the old days, if we could have located the photographer we might have paid him /her $10,000 to use that shot in our automobile ad. Well, at least I looked. That takes us off the hook."

That's essentially due diligence to find the original photographer (in some yet to be determined directory or directories) under the Senate version of the bill. BTW, the senate version is what we're currently talking about here, MOT to be confused with the House version.

Basically, Fred, what this bill does is allows publishers/infringers to ask for forgiveness rather than permission if they get caught infringing and allows them to claim a modicum of "due diligence" as a defense.

Whaddya think?

Mark


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6/24/2008 9:39:05 PM

 
Frederick R. Walker
BetterPhoto Member Since: 3/12/2004
  Mark,
Iíll tell you what I think. We need to find a way to put this more on the front burner than what it is now. We need to turn up the heat on the people who are trying to pass this. Look at where this country is now, gas prices going through the roof, the housing market is in a shambles, we are fighting a war, kids are going hungry, parents losing their jobs, our education system keeps getting worse and worse, and these people are worried about orphan photos? Did I miss something here?
Iím not a stock photographer. I have a few on a stock site, but other than that, I am mainly a landscape and nature photographer, thatís my niche, thatís where I am comfortable. Even though I am not a stock photographer I see how this can affect me also. I am just starting to go to art shows to sell my work and I can see that if someone wants to make a copy of a print, they can. All they have to do is say that they tried to contact me.
So I guess the next question to pose is: ďWhere do we go from here?Ē I did not know about this bill until a couple of nights ago. I am going to put the link above on my website so that I can start drawing a little more attention to this issue. I donít have enough cliental really to make that much of a difference, but hopefully the people I know will pass this on too. I hope that we all make a concerted effort to get this bill struck down and keep it from ever coming up again in the future.
As I said before, I am not a stock photographer, but I know how bad this could hurt us all. We all need to take the time to do what we can to insure that this does not happen. It does not matter if you make money on you photography or not, we need to keep in mind those that do, because they are the ones that set the standards for those of us who want too.
Okay, Iíll get off my soap box now.


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6/25/2008 7:57:55 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Fred, I completely agree with you in all respects and I really appreciate your comments here. It's nice to see someone looking at the larger picture rather than what's in it for themselves. I really appreciate that POV.

Unfortunately though, I don't think there's one answer or solution. No doubt IMO our country is like a toxic train wreck on all fronts from the economy to its worldwide reputation, infrastructure, healthcare is a shambles, the government has distorted a lot of truths, over spent and this latest attempt at passing an Orphaned photo bill mentioned here is yet another thing for some of us to be deeply concerned about because it impacts our income.

I don't know why on earth (or elsewhere) our Congress has to concern itself with non-issues like this one or ones propelled by other singleminded self-interest group lobbys including the publishing industry. The current copyright system works pretty well IMHO. Insofar as I can see, if people avail themselves of the existing system including its legal remedies for infringements, they can be paid what they're due, in most respects. In that last respect, while the legal system could use some minor tweaking in terms of lessening some of the complexity in seeking legal redress for infringement, it's overall still a good system and again, IMO they [senators AND congress should lay hands off, especially until AFTER the election.

I'm of the mind that if it "ain't broke, don't fix it." I really believe that the money spent on trying to railroad this bill through would be much better spent or allocated to things like presenting bills that would prevent lobbiests from bringing these kinds of issues up in the first instance. ;>)

That's my rant. I'm sticking to it and thanks for sharing the soap box Fred !
Mark


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6/25/2008 9:27:46 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Thanks Frederick for your addition to this all important issue.


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6/25/2008 4:06:30 PM

 
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