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This phrased is being passed around photo discussion groups about the
Orphan Works Act:
"Someone can now steal your photo and claim it's an orphan
work, and you have to spend $50,000 filing a lawsuit just to prove them
wrong. No photographer can do that!"
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Folks, this is a senseless argument because someone could steal an image
and claim anything, not just that it's an orphan work. They can
claim they shot it themselves, or that they're using the work under Fair
Use provisions, or that it's got a Creative Commons License. Any of these
arguments could be entirely baseless and untrue. If the argument is that
the photographer would have to spend $50,000 to go to court, and he
can't or won't do that, what makes the OWA any different than any
of these other threats?
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The reality is that the photographer does not have to spend money to go to
court or even "hire" a lawyer. All the photographer has to do is engage
with a lawyer on a contingency basis (where he is paid only if money is
collected), write a letter to the infringer that says that says that their
use of the image is a copyright violation, that the statutory damages for
such a violation ranges from $750 to $30,000, but an amicable settlement
can be reached.
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At this point, the infringer has a decision to make, is he going to
spend $50,000 going to court to defend his claim that he's protected by
the Orphan Works Act? Or is he just going to pay the photographer a couple
thousand bucks just to make the problem go away? Remember, the infringer's
lawyer costs $500/hr, so he already has to spend that much just the show
him the letter you wrote and draft a reply. The lawyer is also going to
advise his client that, in copyright infringement claims, the onus is on
the defense to prove their case, not the other way around. What's
more, if the photographer wins, he gets his legal fees reimbursed. But if
the infringer wins, he does not get his legal fees reimbursed. Even
if the OWA really did provide a mechanism for infringement—which is
does not—the defense still has the burden of proof, and has
to spend the money to do so, and he does not get that money back. In
short, infringing bears nothing but risk.
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You can argue up and down the merits or details of the OWA till you're
blue in the face, but the pragmatic reality is that the infringer will pay
the photographer a settlement, even if he thinks he's right.
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And that's why a lawyer will be willing to take your case on contingency.
You don't have to spend a dime to protect your works.
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