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Orphan Works Fallout? History may lend a clue.

Wednesday, August 13, 2008

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Wonder what the fallout will be if the Orphan Works Act passes? History may lend a clue.

Yes, the outrage (among photographers) continues to boil over the Orphan Works Act, the bill congress is considering, which limits the remedies in a civil action brought for infringement of copyright in an orphan work. I've written about it before, but the arguments still seems to be heated. In recent discussions I've had (and that I've read on other blogs and discussion forums), it's pretty clear that what people are worried about are that photographers' rights would be jeopardized, that rampant infringement would take place because it'd be too easy for infringers to establish a work as an "orphan," and that photographers would not be financially able to protect their copyrights.

While these are reasonable concerns, the question is whether they are justified. Is the language of the bill too broad? How can we test or measure what the real ramifications might be? I had an idea that would help people gain a more realistic perspective on this, and I tested it out on a few people who were vehemently against it. I began by tossing a few hypothetical situations their way. I asked, "How would you feel if..."

  1. A publisher wants to reproduce your concert photos of a famous band for a book ... without asking you, paying you, or giving you attribution.

  2. The makers of a movie biography of a famous fighter wants to use excerpts of your published footage ... without asking you, paying you, or giving you attribution.

  3. A movie company wants to copy one of your ideas for a photo of a woman, and superimpose the head of an actor on top of it for use on a poster that promotes the movie ... without asking you, paying you, or giving you attribution.

  4. A university wants to download photos on your website to use in an overhead presentation to be used in the classroom for a business course they offer every year ... without asking you, paying you, or giving you attribution.

Every person to whom I posed these scenarios reacted with outrage. Then I asked, "Do you think the Orphan Works Act would permit this?" Each said yes. Emphatically. In fact, one person said, "And it's because of ridiculous and outrageous scenarios like those that we must stop this bill immediately!"

Do you agree?

Here's what most people don't realize: All of these scenarios are already permitted by the Fair Use provision of the Copyright Act. In fact, not only are these cases permitted, but they've already happened. Moreover, each case (except for one) has been taken to court, and the court has ruled in favor of the user of the work, not the copyright holder.

Another surprise that may shock you: the works in question were not orphaned works; the copyright holders were known in advance, yet were still not contacted by the user. Here are the facts of each of the cases noted above:

  1. Regarding the reproduction of concert photos in a book: In the case of Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the Second Circuit focused on the fact that the photos that were used had been reduced to thumbnail size and reproduced within the context of a timeline.

  2. Regarding the makers of a movie biography: the movie was of Muhammad Ali, and the filmmakers used 41 seconds from a boxing match film. The court found that the portion of film that was taken was used for informational purposes. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)

  3. In the case involving the movie poster, a movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. The court ruled that the movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

  4. As for the university that wants to use a photo from your website in an overhead presentation, this kind of "face-to-face" electronic use of a photo in the classroom has been considered (de facto) Fair Use, and has never been challenged in court. (See here.)

So, what does this have to do with the Orphan Works Act? After all, if things are this bad with existing copyright law, the OWA will only make things worse, right? Well, that's where we need to gain some perspective, and draw upon history to help us forecast what may happen.

When the Copyright Act was under consideration, there was quite a bit of pushback from artists of all sorts, using arguments you hear today: that the Fair Use provisions are too broad, and that artists will lose the strength of their copyrights, and the ability to file claims would be prohibitive because the expense to do so would be too much of a financial burden for most artists. If works could be used for free, without attribution, or even permission, even though it may be clear who the copyright holder is, a court case is but an uphill, expensive battle. Moreover, the Fair Use provision could apply to anyone at all. The list of permitted uses was so broadly defined, that just about anyone would be able to do anything with a copyrighted work and call it "commentary," or "satire/parody," or "news reporting." Any of these are permitted under fair use, and it'd be an uphill battle to refute such claims..

Were those fears realized? Did that actually happen? The scenarios I described above would make it appear so. But, upon closer examination, history tells a very different story. The cases above are extremely rare exceptions, and were ruled under extremely narrow circumstances. Very similar cases come up far more often that not only don't get ruled as Fair Use, but continue to set new precedents all the time in favor of copyright holders, not users. Most infringers who use works and try to hide behind the Fair Use provisions fail in court and end up paying large sums of money to copyright holders, including their legal fees.

Why weren't the fears of the Fair Use Act realized? Simply put, judges know and understand the spirit of what the Fair Use provisions were intended to do: recognize that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public.

Today, I have never read any credible criticism the the Fair Use provision of the Copyright Act, and in the 13 years that I've been a pro photographer, never have I heard anyone complain that their businesses are ruined by Fair Use, that they have lost any financial opportunity, that they have had a hard time enforcing their copyrights, or that there is a rampant misuse of images by those who hide behind Fair Use.

In fact, courts have been so "balanced" in their application of Fair Use provisions, that warnings to users about Fair Use are abundant. From Stanford University's section titled, "Disagreements Over Fair Use", there's this:

"... there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies--but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place."

Sound familiar? This is because the above excerpt reflects the reality of how lawsuits take place, which I think may help people's understanding of why the OWA isn't as bad as it appears at first blush. I address that in my follow-up article, to be posted soon.

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