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