In Copyright, Copyright Act, Orphan Rights, Orphan Works

“Current available picture matching technology is still in its infancy. If one of the motivations of [Orphan Works] legislation is to facilitate market development of a database for visual arts — the effective date should correlate to a time where a database could realistically be functional.”
— The Honorable Howard L. Berman For the Mark-up of H.R.5439, the “Orphan Works Act of 2006,” May 23, 2006

Technology not necessarily solution to everything
by John Jerney (May. 23, 2006)

Here in Silicon Valley, we like to think that technology, by and large, is a good thing. Technology enables. Technology empowers. Technology, when used properly, can level the playing field between the small and the mighty.

But technology, it turns out, can also be an excuse. Technology can be a shield. Technology can sometimes be used to justify.

This less-than-ideal image of technology is fast being driven into focus by a seemingly obscure piece of proposed legislation to amend the United States copyright laws, ostensively dealing with the subject of orphaned works.

Here is the issue at hand. Museums, libraries, and large corporations are trying to find a way to be able to use copyrighted works, including photographs and other artistic efforts, for which they cannot locate the copyright owner.

The owner may, for example, be anonymous, or could be deceased, unidentifiable, or simply impossible to track down. Whatever the case, potential licensees would like to gain access to these supposedly orphaned properties.

Under the current proposal, which is working its way through the committees in the U.S. Congress, organizations would only need to show that they have conducted a “good faith, reasonably diligent search” before declaring that a work has been orphaned.

And herein lies the problem. Mention the phrase “orphaned works” and the vision of cracked and yellowed century-old prints come to mind. However, an orphaned work could really be any age. In fact, it could be a freshly captured photograph whose attribution and ownership information has intentionally or unintentionally been separated from the file.

For textual material, such as articles, manuscripts and screenplays, this does not present too much of a problem. These items are easy to store on the Internet, and search technologies are rather adept at finding obscure references, even when restricted to searches based on only a few unique words.

In the case of photographs, however, the situation is much different. While some progress has been made in “fingerprinting” images, the technology behind identifying particular characteristics is still some ways off.

Likewise, even the most powerful search engine, Google, uses file names and other textual information as the primary means for performing image searches. Finding photographs based purely on content is very difficult; and you can forget about trying to locate something based on emotional traits, such as “couple in love.”

The Copyright Office itself offers little in the way of a solution. To reduce registration costs, many photographers routinely submit hundreds or thousands of photographs at a time, registered under a single title for the body of work, such as “January 2006 Photographs.”

By not offering online access to images, nor any plans to do so, the Copyright Office best remains a place where issues of ownership can be settled only after an infringement is discovered.

This all adds up to a single undeniable fact. There is no effective search mechanism, central repository, or copyright clearinghouse that enables companies to perform due diligence searches to efficiently locate artists.

Technology, it seems, is not up to the task of providing a solution.

All of which makes the proposed orphan works amendments particularly troubling to creative artists, including photographers, by effectively turning the burden of effort related to identifying and upholding the proper use and licensing of creative works from the potential licensee to the owner.

Morton Beebe (, the legendary San Francisco photographer who helped establish Image Bank, the first modern stock photography agency, is particularly wary of the proposed changes.

“I hope it doesn’t become law because I don’t think it serves the best interest of the public at large,” Beebe told me. “To me, it just provides people with a weak excuse to circumvent and abuse the ingenuity of creative artists.”

As an explorer as well as a photographer, Beebe became the 39th person to reach the South Pole while photographing in Antarctica in 1957-58.

“I remember all the way back to the 1950s when I was part of Magnum Photos in New York,” Beebe explained. “They assigned people to go through issues of every major magazine to search for credits, or the absence of credits. Now you, as an individual, couldn’t possibly do that.

“But that’s what you have to do to protect your copyright. If you don’t, your material will eventually land in the public domain.”

The deterrent today for copyright infringement is a rather stiff set of penalties, including actual damages, statutory damages, and attorney fees related to seeking recourse.

But the proposed amendment actually lessens the amount of damages a creative artist can claim for so-called orphaned works, settling instead on an undefined concept of “fair market value.”

“The idea behind the law appears to be, ‘go ahead and use the images and there will be no penalty’ because you supposedly made every effort to locate the owner,” Beebe said.

For his part, Beebe has been trying to get leading manufacturers to include watermarking technologies as standard features in professional cameras.

“I tried to get camera makers to actually embed a copyright right on the film as long as 30 years ago. They didn’t want to do it,” Beebe recalled. It would seem even simpler today to include a menu item secured by a code allowing customized copyright information to be added directly to the RAW image data.

“Why can’t they do that?” he asked. “Plus, it could serve as a great antitheft system. In the meantime, we just have to keep up with the times and make sure that we, as individuals, aren’t shoved out of the business.”

For Beebe, the orphaned works amendment is a colossal mistake. “To me, it’s almost as if people started stealing cars left and right,” he explained. “Imagine if all they had to say was, ‘Gee, the car was there with the keys in it, and I couldn’t find the car registration. I’m sorry, it was just an innocent theft.’ How far would that explanation go?”

John Jerney is a freelance travel writer and photographer based in the San Francisco Bay Area. He also contributes the “Report from Silicon Valley” column to The Daily Yomiuri, the English language edition of the Yomiuri Shimbun, Japan’s largest circulation daily newspaper. This article is reprinted here with the author’s permission.

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