If you create art, read this

[imatate]

http://mag.awn.com/index.php?ltype=pageone&article_no=3605&page=1

[argv]

This article is a classic example of just why photographers are so greatly misinformed. Before I go on, there's one clear give-away shows an article is vacuous: the copious use of exclamation points. There's another, albeit it more subtle, cue that shows an article is less than the whole story: if it ever uses the phrase "... is bad for photographers..." Well-balanced, fully-informed articles are also written that way, and it reflects that the author isn't writing from a biased point of view. (Remember, "bias is biased. Even if it's in your favor, chances are it's not the full story.")

 

In the case of the orphaned works legislation, it is the case that there are some provisions that are not as strong as they need to be. However, what is never stated is actual provisions or language in the bill that people are so uptight about. In this case, I can't find the truly objectionable language, so I can't quote it. But, I have read what others are saying that the bill implies, and (like the cited article), the feeling is that the bill threatens that you will lose your copyrights if you don't register them, or you will lose your protections under some circumstances even if you do copyright them.

 

The reason for all the hoopla is that the bill was written so that publishers could use works that have been around for a long time, but it is impossible to determine who the owner is. The bill would protect the user from liability in case they got sued.

 

That's the *intent*, and while that sounds awful, what is also written into the bill are protections and safeguards to assure that works are not stolen, as well as provisions for what to do in case the owner shows up. In this case, the bill has very specific language that calls for "best efforts" in trying to assess who an owner of a work is. For those not familiar with law, "best efforts" is a legal term that carries with it a very high standard for showing (with meticulous records) just what your efforts were in determining who the copyright owner is. The byproduct of this high standard is also high penalties: if YOUR work was the one stolen, then when you file a lawsuit, the judge is going to hear you present your case on just how easy it might have been to "find" your work. In which case, you could show any number of methods, such as using search engines and whatnot. But the easiest way would be to use ny of the existing image-recognition companies on the web (picscout, ideeinc, et al). The user of the image could merely submit the photo to one of these companies, who would then run it through their analysis, and determine each and every place on the web where that image -- or any portion of that image -- exists. As a beta user of Idee's product long ago, I can tell you there is virtually no way to hide an image. They can and will find it. yes, it's insanely expensive to do a body of work (making it really only economically viable for very large stock agencies), but for a single work, it's a minor expense. AND, most importantly, it is an act that can satisfy a "best efforts" standard in a lawsuit.

 

Speaking of your lawsuit, if you can demonstrate ANY way that your image could be found, then the offending company is not going to get off the hook. Not only will they be held liable for copyright infringement, but the fines can go above and beyond the statutory damages (as codified by law). The fines for infringements go up to $30,000 per work, plus an additional $150K for "willful" infringements, so the added charges that could be associated with failing to live up to the "best efforts" provision in the orphaned works bill mean that the fines could be higher.

 

There are many other fears being spread about the orphaned works bill that are baseless, but it all comes down to this: the bill's intent was originally written to protect publishers from being sued by copyright trolls: those who intentionally disseminate copyrighted works in such a way so as to entrap publishers into using them so the creators of the work could sue them for infringement. This is not an unusual thing to do, but it requires quite a bit of material, plus a considerable infrastructure to mechanize the system efficiently.

 

Now, all that's not to say that the Orphaned Works bill doesn't have some problems, but they are largely besides the point as far as photographer's concerns go.

 

[Matt Laur]

*sigh*

<br><br>

<a href="http://maradydd.livejournal.com/374886.html" target="_blank"><b>Here is a nice, soothing sedative</b></a>, to help people realize that this is not about Bill Gates somehow getting richer off of your cat pictres. Yeesh!

[argv]

I wish I'd seen that link before I wrote all that, matt. Good resource.

[holly_willner]

Marcus- if you are the right Marcus Tate .let me know. Ive been trying to find you.

best first date ever ...Las Brisas.

Holly