Protecting Photographers and Visual Artists
Tuesday, July 15th, 2008 by Patrick Ross
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You find a range of opinions on orphan works legislation in Congress, including among Copyright Alliance members. But I believe all out there who care about copyright and creators’ rights agree that nothing good will come of an artist being denied their rights even when they are making efforts to ensure their works can be identified.
The risks to photographers and visual artists surpass that of any other form of copyrighted work. They are easily copied and identifiers are easily lost, intentionally or otherwise. Whatever else you may think of orphan works legislation, it does call for a diligent search to be done by the individual or organization seeking to use a work. That diligent search should be done regardless of any pending legislation.
The American Society of Picture Professionals has created a how-to list in this regard, “ASPP’s Best Practices for Locating Copyright Owners of Photographic and Visual Art.” I’m proud to say ASPP is a member of the Copyright Alliance via its inclusion in Copyright Alliance member Imagery Alliance.
The Best Practices include many tips for images where the photographer is known (one is to go to Copyright Alliance board member Professional Photographers of America’s (PPA) artist registery, which PPA announced at last year’s Copyright Alliance Exponential). Along with tips there is a list of sites to search. They include Copyright Alliance member American Society of Media Photographers (ASMP), and some Imagery Alliance member partners Advertising Photographers of America, Editorial Photographers, National Press Photographers Association and the White House News Photographers Association.
Of course it’s more challenging to find the copyright owner for an image when you don’t know the photographer or artist. One proposal that’s listed is contacting Copyright Alliance member Picture Archive Council of America, which can send the image to PACA members and affiliated organizations to hopefully identify the owner. Other organizations here include more Copyright Alliance partners via Imagery Alliance, including the American Society of Picture Professionals, the North American Nature Photography Association, and the Stock Artists Alliance.
Tracking down owners of fine art can be quite a challenge. One resource on that is Copyright Alliance member Graphic Artists Guild and members via the Imagery Alliance the AIGA and the Society of Illustrators.
If you are conducting a search for ownership of an image, don’t rely on this blog. Do visit ASPP’s Best Practices page, but please note very closely where it says this:
This document should not be relied upon to determine if the steps you have taken are sufficient. Since there is no current legislation that permits the use of a work if the owner cannot be located and any legislation will not be retroactive, the fact that you have tried to locate the owner and did not succeed is not a defense to a claim of infringement by an emerging copyright owner. The copyright owner could seek monetary damages as well as an injunction to prevent the future publication of the work in certain circumstances. If the work is registered, the owner can also seek statutory damages and attorney’s fees.
Disputes remain on Capitol Hill over how orphan works language should be crafted, what a diligent search might be, what damages should be allowed, how they should be adjudicated, and even whether legislation is needed at all. Regardless of how that all shakes out, artists have rights, including those in the visual arts, and ASPP has taken a step here to ensure those rights are respected.
January 6th, 2009 at 3:29 am
I don’t understand why so many art organizations are fighting against the Orphan Works bill when they are too cowardly to speak out against people who are already violating the copyright of other artists as Shepard Fairey has done. He is a prime example of the type of artist we should be going against instead of supporting. Put up or shut up. Look up what he did with the art of Rene Mederos. Or are you afraid of making the Obama crowd angry? You can’t have both worlds you know! We can’t stand for some rights some of the time. We must stand against ANYONE who steps on a fellow artists rights.
October 20th, 2009 at 10:13 am
I feel that “orphan works” should eventually reach public domain. There is so much stuff out there that I think should be studied for freeing. Also, not freeing works create a practical use issue for works later in their life. For example, tracking down the person that created a photograph to copy of ones great grandma when the photographer may have gone out of business a long time ago could be near impossible for consumers. The same is true with works for companies that have gone out of business and were not sold off to someone else. I also think that when the market for the work is long over with, and it has been years and years since that work was in the stores, and the only thing left is when works appear in old archives and historical collections, this is the time in which that work should become public domain.