The National Press Photographer’s Association (NPPA) has submitted comments on the issue of orphan works and mass digitalization, with the US Copyright Office, to advise Congress on how to address current issues involving copyrights and orphan works.
The comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with contributions from others at NPPA, discuss the myriad of issues currently facing visual journalists regarding their copyrighted images, and offer proposed solutions for creating a system which would treat copyright holders and users of orphaned works fairly and efficiently.
NPPA stated in its comments that it “is gravely concerned that in seeking to address the frustration of ‘good faith users’ of Orphan Works in order to cure their potential liability and ‘gridlock in the digital marketplace,’ the Copyright Office may create a far more serious problem for authors/owners of visual works.”
In its comments, NPPA noted, “As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”
It is that second quoted comment which it the nub of the problem for anyone who posts photographs on the web. That even means those who post their family home and vacation photos. The problem is insidious.
That wonderful photo you took and uploaded on Maui, during your vacation, for your friends and family to view, might just might become some company's Hawaiian Travel advertisement, pulling in substantial income for the company and “nada” for you, not even attribution.
How could that happen?
Theft on the Internet is rampant. Someone might have liked your photo and used it for their website. Since it would look bad, they removed your copyright, if you put one on the photo, which few do with their family photos, despite it being illegal to remove copyright information from digital images.
Moreover, much capture software strips digital meta data from photos, so if you embedded your copyright in the photo's meta data, which again, few people do, it could be gone.
Now an advertiser sees the perfect photo for their brochure on Hawaiian travel to Maui, on the website which stole your image. They send a letter or email and ask about the photo and are told it was just out on the Internet and wasn't identified. Heck, they person who stole it from you doesn't want to admit they're a thief. So the travel company, having tried to find out who owns the photo's copyright concludes it's an orphan work and takes it for their own.
In addition, a digital content aggregator could claim it's an orphan work under proposed rules, and makes it their own, and from that point on sells its use for their profit, leaving you out in the cold.
Somehow that doesn't seem fair to me. In fact it's really upsetting to me.
I applaud NPPA for working not just to ensure the fairness of the system for Press Photographers, but for everyone who's rights to their own work could be appropriated by others for their commercial use.
At this point, the comment period is over. When a new bill about Orphan Works and Copyright goes before Congress, I hope you'll contact your Congressman and Senators, to help ensure Congress adequately and fairly protects photographers, even home photographers, from those who would seek to profit from others' work, without compensation of any kind, without doing due diligence to locate the photographer who made the original image.