Orphan Works Explored

Editor’s Note: Of all the legal issues with which photographers are faced, perhaps none is so polarizing as “orphan works.” The U.S. Congress has taken note of the importance of modifying the current law, and new legislation is now in the pipeline. To help you make sense of the issue, Digital Photo Pro is putting together a series of articles on the subject, beginning with this one.

A short time ago, I received an e-mail out of the blue, inquiring whether I had covered a football game in 1987 as a stringer for the Associated Press.

In the e-mail, the photo coordinator at The Palm Beach Post indicated that one of the newspaper’s customers wanted to order a copy of the image of the winning coach celebrating with his team, which the newspaper had published more than 20 years ago. The coordinator was attempting to determine if I was the photographer, and if so, whether I still held the copyright to the image. There were two surprising aspects to this e-mail. First, that the photo coordinator managed to locate me based upon only the AP caption and credit that was originally transmitted with the image. Second, that I had received the e-mail shortly before legislation was introduced into Congress in an effort to resolve the “orphan works” problem.

According to the Copyright Office, “orphan works” describes the situation where “the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.” The proposed legislation directed to this situation consists of Senate bill 2913, named the Shawn Bentley Orphan Works Act of 2008, and the companion House bill 5889, named the Orphan Works Act of 2008. From the point of view of a photographer concerned that his or her images may be used without authorization or consequence, it’s perhaps understandable that the “problem” might appear to be the product of an infringer’s imagination. Understandably, many organizations, including a number of those representing photographers, oppose the legislation.

A Real Problem?

If there’s any suggestion that the orphan works problem is real, such evidence comes from the Copyright Office’s Report On Orphan Works—prepared in response to a request from Vermont Senator Patrick Leahy and Utah Senator Orrin Hatch—and from the various letters submitted to the Copyright Office in connection with its review of the issue. The report, released in January 2006, concludes that the orphan works problem is real, and that “there is an identified need to address the ‘orphan works’ issue….” At the same time, the Copyright Office admitted that although it received “nearly 850 written comments…exactly how frequently the orphan works situation occurs is not entirely clear.”

According to the various university librarians who presented written testimony to the Copyright Office in connection with its orphan works review, the problem exists in connection with historical collections. For example, Sara Thomas, university librarian for Cornell, reported that one of Cornell’s collections includes more than 350,000 unpublished photographs that it would like to make available. However, “only 1% of the photographs have any indication as to who created the photograph, let alone any information as to the current copyright owner.” In another example, Brian E.C. Schottlaender, university librarian for the University of California, San Diego (UCSD), detailed how UCSD was able to make only 4,000 of the more than 100,000 photographs in the Scripps Institution of Oceanography Archives—a unit within one of UCSD’s 11 libraries—accessible over the Internet. Schottlaender’s written testimony suggests that UCSD has been unable to ascertain who created a majority of the photographs in its collection, much less who holds the copyright to those photographs.

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