The Orphan Works Act would change the law so that someone who wants to use a copyrighted work, but is unable to find the copyright owner after a "reasonable search," could use it without fear of paying significant damages. Under current law, someone who uses a copyrighted work without first obtaining permission is liable for damages even if they tried but could not locate the copyright owner. If the work is registered with the Copyright Office before such an infringement, those damages can total $150,000 per violation, plus attorney and court costs.
The bill calls all works whose authors can’t be found “orphans,” suggesting they are helpless pictures that must be rescued from obscurity. But if this bill passes as written, the ones who will be helpless are artists, photographers, authors, musicians, furniture makers, software writers and others whose creative work brings us a better life. We creators rely on the sharp teeth of copyright law to ensure our ability to profit from our work.
The definition of an orphan work in the current legislation is too broad and the remedies for photographers are too small and sometimes non-existent if an infringer claims a work is orphaned. The bill grants exceptions to a broad range of users, including non-profit and educational clients, who are key customers for editorial stock photography. Ambiguous language regarding user responsibilities and creator remedies could lead to expensive legal wrangling in federal court. Yet the bill removes the hope of collecting punitive damages and attorneys’ fees, provisions in current law that allow photographers to afford such litigation – or better yet, avoid it.
Visual works – especially news photographs, which are often widely distributed and copied, frequented with credits removed – present a particular challenge when they are orphaned. Without the creator’s name or other source information to begin with, there is almost no way to determine their ownership. Image search technology is still young, and the Copyright Office has failed to take the first step toward making this information available by posting registered images online.
There may be a need for orphan works relief. But this bill, with its vague language and open assault on the legal remedies that photographers depend upon to enforce the licensing of images, is neither a practical nor a fair solution.
