Photo Theft and the Orphan Works Act

For those who know me, I generally try to avoid political discussions.  However, as of late there has been a lot of buzz regarding a bill which just passed in the Senate and is going to the House of Representatives.  This bill, called the Orphan Works Bill (H.R.5889) is an attempt to amend the Copyright Act to modify how so called “orphaned” creative works are allowed to be used.

The idea behind this bill is to allow museums, libraries and other “keepers of the heritage” to freely use creative works if they are unable to find the copyright holder to acquire a license.  However, the way the bill is written would make it legal for any individual to use any copyrighted work, even if they cannot find the owner, provided they made a “good faith, reasonably diligent search” for said owner.  Yes.  You heard me right.

What’s more, the use of this copyrighted work is free so long as the owner doesn’t step forward.  And, if the owner sees their work being used without license, they can come forward and sue for the normal license fee (but not any legal fees involved) so long as the infringement was for commercial use.  If not used commercially, there is no compensation for the copyright holder.

In return, the Copyright office must make a searchable database available so that people who wish to use “orphaned works” can attempt to find the copyright holder.

Here are the problems as I see them relating to my photography.

  1. At present, the copyright to an image is owned by the person taking the photo the instant the shutter is pressed.  It is recommended that the copyright owner register their works with the copyright office (for a fee) to protect them in the case of a lawsuit, but it is not necessary.  This amendment would make registration mandatory before an image could ever be put online.  Otherwise, there is a risk that the image could be used without my consent and I would have no recourse.
  2. I want to be in control of the licensing of my images.  If someone finds an image they like, they can “make a reasonable effort” to find the copyright holder and then use the image.  While it is possible to sue to get the licensing fee, there is no way for me to have them stop using the image or withdraw it from publication.  Therefore, I lose control over who can use my images and how they can be used.
  3. What about the case of people wanting to purchase additional prints of their wedding?  They lost the business card and looked in the phone book but come up empty as to who took the photos.  Off they go to the store to scan and reprint and the photographer loses out on the print sales.

And this is just the beginning!  I guess this means I’m going to have to start putting watermarks on all the images I post here on my blog.  Granted, those on Alamy come with copyright watermarks, but I really didn’t want to have to do this for everything.  This way, if my copyright statement is actually embedded in the prints, there is no question who the copyright holder is.


Copyright Office page on the Orphan Works Bill (including the bill itself)