This is the Orphan Bill please go HERE to oppose this insane legislation!!
This Orphan Works legislation allows anyone in the U.S. to use any image by any photographer or stock agency (regardless of nationality) for any purpose (with the exception of “useful” articles – keychains, coffee cups, etc.) without permission of the rights holder, simply by searching for, and failing to locate, the rights holder.
Once the infringer commences use, there is no means by which to stop that infringer from continuing to use the image. This includes use on book covers, advertising, posters, television, billboards, any usage whatsoever, for any purpose, even if the photograph was taken yesterday.
This Orphan Works legislation has no provision to prevent the use of works in a manner that might be reprehensible by the owner. For example, a photograph of my child waving to his grandmother could be used on a brochure produced by the Aryan Nation promoting the hatred of Jews and I could do nothing to stop them. Competing photographers could use my work in their own works. The work of every photographer around the world is fair game under the Orphan Works laws.
By opening the floodgates to unauthorized use of protected works, the proposed legislation will likely result in a tidal wave of litigation and widespread violation of the rights of publicity and rights of privacy of persons pictured in the orphan works. A photographer’s right to exploit copyright in a photograph (and to grant licensed rights to others) is effectively limited by the right of any person appearing in the photograph to control or otherwise limit the use of his or her likeness. Photographers carefully control and limit such use so as to avoid the violation of rights of privacy and publicity of pictured persons. However, under this legislation, that control goes out the window. Parties making use of orphan works will serially violate the rights of publicity and privacy of pictured persons.
All of us must register with registries certified by U.S. Copyright office, or risk the unencumbered use of our images throughout the U.S. If I am fortunate enough to discover that my photograph has been infringed, I must approach the user, prove ownership of my image, and request “reasonable compensation”. The determination of what is “reasonable” is left to the infringer to negotiate, and I lose all rights to sue for copyright infringement even if I have registered my work with the U.S. copyright office far in advance of the usage.
I am entitled to the profits that the infringer has made from the use of my photograph, but only if I can prove those profits. As there is no “discovery” provision in the legislation that would require the infringer to provide me with any information (accounting, correspondence, copies of all usages), it will be virtually impossible for me, or for any rights holder, to determine the extent of the usage and then calculate the profits made by the user.
Under standard copyright law, it is the infringer’s responsibility to prove which portions of its profits are not attributable to the use of the work. The new orphan works legislation would flip this provision on its head, forcing the rights holder to prove the profits of the user, or receive no profits. Proving profits is very difficult and generally requires analysis by forensic accounting experts.
Please help us block this bill!!
Christian Young Photography