Orphan Works Bills - House and Senate - Update

For those of you who do not get the ASMP member announcements, you should read this, as it is the latest update on what is happening and not happening on the Orphan Works bills. Our president, Todd Joyce, has been trying to keep us up to date, but as he notes in this message, sometimes, Vic Perlman, ASMP legal counsel, and Todd are given information but told by people in the House and Senate not to pass it on. This, of course, makes it difficult for our leaders, as they can't tell us everything that is happening. That said, they have kept us all in the loop as much as possible, to wit the latest:


Dear ASMP Members:

We know that many of you are anxious for an update on orphan works. The ASMP has been working on orphan works continuously, on virtually a daily basis, from the beginning through today. That is one of the reasons why we have been invited to testify before both the House and the Senate on issues like this. In order to keep the “noise” level down, we have tried to send out reports only when there has been something of substance to share. In the legislative world, though, much of the time is spent in discussions that may eventually lead to action but that do not produce any immediately visible results or anything worth reporting. It is very important for everyone to understand that in many cases, we are specifically asked by people on the Hill not to report some of the information they give us.

Until tangible movement takes place, all of the “action” consists of talking and guessing what will happen. That is the situation for all of those who are involved: trade associations, their representatives, legislators, their staff members, Copyright Office staff members, etc. So, the following is a report of the current status, but by its nature, this report is based almost entirely on what we have been told and what we can guess, all of which can change and/or turn out to be incorrect in the blink of an eye.

First, let’s look at the House of Representatives. Based on what key staff there told us yesterday, the bill does not seem likely to move next week. The reason is that there is still substantial unhappiness, not on the part of the photo or artist organizations, but rather on the part of the user community. The user community is very unhappy with the protections that we were able to get inserted in the House bill.

We understand that many of our members (and ASMP) would have liked to have seen those protections go much further. However the political realities are that most of those additional improvements are simply unobtainable. To help put things into context for you, right after the House bill was introduced, the lawyer/lobbyist for one of the most important user groups congratulated ASMP on doing what he called “a great job for (our) members” with the House bill. He then, of course, set about trying to undo that great job, but the fact remains that the other side perceived our activities as a “win” for photographers.

In terms of trying to predict what will happen with the House bill, it seems likely that, at this point, at least some of the most important user groups may have decided to let the bill die in this Congress so they can start again in the next one — with a new chair of the IP (Intellectual Property) subcommittee. This is an educated guess and nothing more reliable than that.

At the end of this year, Chairman Berman will be leaving the chair of the IP subcommittee. He has been the primary legislator responsible for the protections for photographers that are in the House bill. There is still no hard information regarding who will replace him as chair of the IP subcommittee. However, it is clear that, whoever it is, he or she will not have the same photographer-friendly track record as the current Chairman, and it could easily be someone with a definite pro-user track record.

In any event, if the bill does not move through full Committee mark-up next week, the chances of it moving at all in this Congress start decreasing exponentially with each passing day. The odds of it moving before the August recess are extremely small right now, and after that, they start heading towards zero dramatically, and fast.

On the Senate side, we have heard from a number of sources that one of the Senators has put a hold on the bill. This essentially freezes the bill until the hold is removed. We have heard lots of speculation as to the reason for the hold. However, the most likely scenario is that it has nothing to do with orphan works, but rather is tied to other legislation. I.e., the orphan works bill is being used as a bargaining chip to get some other, unrelated actions in the Senate.

Whatever the reason for the hold might be, if it is still in place when the Congress ends, the bill dies, and orphan works legislation has to start all over again in the next Congress. In fact, unless both bills pass with identical language and get signed into law by the President before the end of the year (which seems possible, but highly unlikely), orphan works either goes away or, more probably, has to start up again next year. We believe that the people who have been pushing for this legislation will not simply give up and go away.

At this point, we are continuing to work to keep those protections that we have already achieved in the House bill, to get some further protections written into it, and to have the Senate bill incorporate all of those protections. The most likely bottom line is that there will be no orphan works amendment enacted this year. However, as one Senatorial staffer said to us on Monday, “never say never.” You just don’t know what might happen or even if it will happen before you have any notice of it.

Thank you, and please be assured that we are working to protect artists as best we can.

Todd Joyce
ASMP President

Orphan Works

There have been a lot of e-mails circulating around the web about the Orphan Works bill. The Senate version is just plain unacceptable, but there is a lot more to the House bill than a lot of people realize.

In short, whether we want it or not, there are more of the BIG business people out there than there are of us photographers. We currently have a subcommittee head who is sympathetic to our plight; he is moving on to another subcommittee, and the likely replacements are not at all sympathetic to our needs.

Please read the article I wrote a few weeks ago on the subject to get more of the ins and outs than are being published by those e-mails.

One thing I am not sure I mentioned before; I have fought hard for copyright issues, having worked at the grass roots level when Barney Frank was head of the subcommittee, to make sure photographers got the best legislation possible. I don't like this bill any more than anyone else, but unlike some, I am a realist. The next version will be far worse if we go that route!

http://asmp-nc.blogspot.com/2008/05/orphan-works-hr-5889.html

--Margo Pinkerto, President ASMP/NC

Welcome Our New Members

A warm welcome goes out to our new members:

Since January 2008, these following people have joined ASMP/North Carolina:

Karen Ashworth who photographs nature in its purest form.
http://www.karenashworth.com/

Frederick Price

Kevin Shank who focuses on covering special events.
http://www.alookattime.com/

Susan Sidebottom who specializes in black and white portraits of children.
http://www.sidebottomphotography.com/

Timur Targay, of Black Box Studios, who runs a full service photography studio.
http://www.blackboxstudios.net/

David Dietrich, an architectural photographer who is based in Fletcher, NC.
http://www.daviddietrichphoto.com/

Albert Hunt, who is based in Efland, NC.
http://www.fosterhunt.com/

Heather Hansford, a travel photographer.
http://hansfordphoto.com/

Ben Walters, who works in portrait and nature photography.
http://www.benwalters.net/

Larry Gottschalk, who specializes in portraiture, food, and product photography. http://www.parallaxview.com/

Joshua Wright, who shoots in and out of the studio for editorial work.
http://www.joshua-wright.com/

Anthony Smith, who covers everything from weddings to events. http://www.anthonyvinsonsmith.com/

Jacqueline Gardiner-Veal, of Constellation Artworks.
http://www.constellationartworks.com/

Welcome aboard everyone!

--Paul Jackson of Monty Tran Photography in Asheville. http://www.montytran.com/

Orphan Works, HR 5889

There has been a lot of discussion going around about Orphan Works and the current bill in the House. Many of you have been getting e-mails urging you to fight this bill by writing your Congressmen. Please don’t and read on. The time may come when your input is needed, as it has been in the past, but right now, let’s not alienate our representatives.

Instead, I urge you to check out the links in this article to answer some of your concerns and set the record straight. If you have other questions, please do not hesitate to contact ASMP.

In a nutshell, the originally introduced Orphan Works bill, part of the proposed Copyright Modernization Act of 2006 (HR 6052), was initiated at the behest of publishers, museums, scholars, and others who wished/wish to use the works in legitimate ways. However, as authored, it would have eroded copyright protection for visual artists such as photographers, illustrators, and textile designers, so ASMP and other creative trade groups banded together to effect positive changes, but it died in committee.

As we all expected, another bill was drafted, (HR 5889). Unfortunately, a lot of BIG businesses who are not educational have gotten into the act and have fought to make the Orphan Works bill favor them. The good news is that the Honorable Howard Berman (D CA), Chair of the House Subcommittee on Courts, the Internet and Intellectual Property has been sympathetic to our plight and has worked with us to effect positive change in this bill. In spite of this, harsh reality dictates that we will not get everything we want, but the goal is to minimize the damage to creatives such as ourselves and introduce some elements to the bill that work in our favor.

The House Subcommittee has invited ASMP (over 5,000 members), PPA (more than 20,000 members), and PACA (over 100 North American companies and over 50 international members) to present testimony on behalf of the creative world. It has been said that ASMP has been in secret negotiations, excluding other trade groups. These allegations are ludicrous, since one is invited to testify before a House Subcommittee based on one’s reputation for integrity. One cannot insinuate oneself into these hearings. I know, because my elder daughter was surprised and honored when she was invited by another Congressional Subcommittee earlier this year to testify as an expert witness.

It should be noted that once this session ends, The Honorable Berman will be leaving as chair of this Subcommittee, and the likely candidates for successor are not going to be on our side. Our best —albeit not-ideal — chance, is to work on this bill as it will be the least onerous of anything proposed in the future.

On May 12^th, Rich Halperin, President of NANPA (over 3,400 members), also came out in favor of this bill as being the best bet we have.

I would like to point you to some very informative websites that may address some of your concerns and set the record straight, but before I do, please read a message — used with his permission — from Peter Krogh, author of The DAM Book (Digital Asset Management). It should be noted that Peter has been working hard with Adobe to make sure that metadata works in our favor to help us protect our copyright. He is also, as you know, a new national Board member, and someone who supports this bill, even though it is not an ideal bill for us:

“Yes, there is a contingency plan - to initiate a letter-writing and calling campaign if the bill coming out of conference does not contain some of the important concessions we've won. Unfortunately, that will be a lot less effective if photographers have already said they won't accept the compromise that is currently offered.

“And we are also working on the issue on other fronts. Some kind of orphan works legislation *is* going to pass. We as an organization (and I personally through other work I do) are trying to prevent the orphaning of works by encouraging good metadata practice. For instance, you could benefit from adding contact and copyright metadata to the images on your website.

“And keep in mind that Orphan Works legislation mostly effects work that has been registered with the LoC [Library of Congress]. So if you are not routinely registering your work, the point is kind of moot anyway (not totally, but to a large extent.) We at ASMP, and I personally, have been working for a long time to raise awareness, and to show photographers how to do this.”

—Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers

• Update on 2008 Orphans Works legislation
• Audio podcasts on the whole Orphan Works issue, including history
• GovTrack.us Tracks what’s going on in the 110^th US Congress — a synopsis of the bill

To get an idea of what the opposition is urging, check out the following:

• American Library Association Think of how many libraries there are in this country!
• Intellectual Property Watch Note the concerns of Emily Sheketoff, Executive Director of the ALA (see above) Washington, DC office
• University of Florida One institution that is all for an Orphan Works bill that might not be in our favor
• Public Knowledge
• The Chronicle Review Note the comments, too!

—Margo Pinkerton, President ASMP/North Carolina

Zann and Pinkerton Photography and Barefoot Contessa Photo Adventures

More Than a Stepping Stone

Recently I joined the ASMP as an Emerging Associate Member, a sub-category of Associate. This is a one-year-only category serving as a transition for photographers who are starting out or are assistants. After one year, my category is automatically changed to Associate, though, the benefits are the same. Some of these benefits include: resources for business including the ASMP Business Bible, Insurance Programs (health & equipment), The Society's magazine, published five times a year which presents news and features and is free to all members and affiliates, the Newslines page which features member activities, competition and exhibition opportunities, updates on the legal and business environment, and finally but not limited to, access to competitions, workshops, forums, and discounts on equipment.

As an emerging photographer, these resources are invaluable and the learning curve flattened allowing for accelerated growth in the industry. I started attending local ASMP meetings in Asheville, NC about a year ago. The best part about that was getting to know more experienced photographers, gaining feedback on my work, and suggestions on steps to move further in this ever-changing and competitive field. We even produced a show for our City Hall, exhibiting works throughout the Mayor's office and had a second one recently.

As we all know, there is a lot of talent out there and we all understand photography at some level due to the vast accessibility of the tools required to make photographs and the heavy saturation of images in today's visual world. I am depending on ASMP as a guide to turning my passion into my profession, while making like-minded friends along the way.

--Paul Jackson of Monty Tran Photography in Asheville. Paul is a new member and has instantly gotten involved in ASMP/NC by helping run this blog.

Gaining Perspective

Advertising Photographers of America (APA) and liveBooks are hosting a panel discussion about growing their business by increasing and improving their web presence and taking their sites to the next level. On June 4th, the Charlotte chapter will be hosting the series. Be sure and attend as this stop is the last of the seven-city tour.

At each APA Chapter event, through either a website review session or a panel discussion format, you'll gain valuable insights from industry experts into how you can refine your content, differentiate your site, and help increase the quality and quantity of work you attract in the coming year!

Schedule of Events:

• APA Atlanta - March 20
• APA San Francisco - April 3
• APA San Diego - April 19
• APA Midwest - April 23
• APA New York - May 14
• APA Los Angeles - May 29
• APA Charlotte - June 4

You won't want to miss this outstanding opportunity. After all, we can all use help on improving our businesses, especially in this economy.

The Car Rental Analogy

As photographers, we watch out for our copyright, but negotiating with clients can sometimes be challenging, especially when you are dealing with the "middle man."

"I understand where you're coming from; after all, I am an artist, too," some buyers will say, "but what do I tell my client so he understands?"

There are a couple of points I use with clients in these situations. One is the car-rental comparison:

• If I rent a car, I pay by the day.
• If I rent a fancier car, it costs more than the economy model. Similarly, if a client wants a one-shot photograph for a project, it will cost less than a major production.
• If I rent a car for four days, it costs four times as much as one day. If I shoot for four days, it will probably cost the client four times as much as one day. If, on the other hand, I rent a car for five or more days, I tend to get a break, just as I give my clients for a job of five days or more (or whatever number of days I deem prudent and fair to both sides).
• If I opt for a GPS system, a child's car seat, and/or a rack on the top, those are extras that add to the cost of renting the car, just as extra usage merits a higher fee.
• When all is said and done, I bring the car back to the rental agency; they own the car they have produced for my use, after all, not me, just as I own the photography that I have produced for a client, not them.
• I provide a service to my clients, just as the rental car company provides a service to me.

The other is the advertisers comparison:

• If a publisher pays a photographer and wants unlimited rights for a "one-time" assignment into the contract, why do they not do the same for their advertisers who pay them? We are talking usage in both cases.
• Reuse merits repay. Just as their advertisers may expect to pay additional fees for each ad insertion, with perhaps a discount for multiple insertions, so should the publisher expect to pay additional fees for additional insertions of photographs.
• If there are multiple insertions, there is often a discount for advertisers, just as I rarely charge a full stock fee for a client who paid for an assignment and wishes additional usage; instead, I tend to charge 75% of the normal stock fee for that usage.

I am not saying this always works, but I have found it to be very effective in numerous cases.

--Margo Pinkerton, President ASMP/NC. Margo runs Barefoot Contessa Photo Adventures and is the author of a weekly blog with articles and tips on photography and travel.

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