It is increasingly unlikely that an orphan works bill, uniformly viewed as a threat to photographers, will pass during the current session of Congress. Despite support from the U.S. Copyright Office, as well as influential companies like Microsoft and Google, no such bill has been introduced in either the U.S. House or the Senate so far.
The idea is still active in Congress, however. Both the House and Senate held hearings recently on whether to make copyrighted works that have been “abandoned” by their owners available for reuse. House staffers have been holding closed-door meetings every week or so with interested parties, trying to hash out compromise language for the bill. The most recent of these meetings was held Tuesday.
Photography associations, fearful that an orphan works bill could make un-credited visual images essentially free for the taking, have campaigned vigorously against it. Getty Images and Corbis, normally fierce competitors, banded together to hire a lobbyist, Steven Metalitz, to fight the proposal, according to Nancy Wolff, attorney for the Picture Archive Council of America (PACA).
In February, several photography groups – including PACA, the American Society of Media Photographers (ASMP), Professional Photographers of America, Advertising Photographers of America and others – warned that the bill was being fast-tracked and could become law this year. They asked their members to send letters opposing the change, which was recommended in a report from the U.S. Copyright Office earlier this year.
Wolff, who has been closely following the orphan works legislation, says it is possible a bill related to orphan works will be introduced in the House later this month. Rep. Lamar Smith (R-Texas), chair of House Subcommittee on Courts, the Internet, and Intellectual Property, appears to be interested in sponsoring the bill.
There is less activity on orphan works in the Senate, where Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) have taken the most interest in it.
One big question is whether the bill will use the language proposed by the Copyright Office. The Copyright Office suggests lowering or eliminating the penalties for someone who infringes a copyrighted work if they can’t locate the owner to ask permission. Of particular concern was phrasing saying a work could be considered orphaned if the infringer couldn’t find the owner after “a good faith, reasonably diligent search.” There is no way to search the copyright office records for the owner of a photograph without already knowing the owner’s name.
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