Calls for Changes in Orphan Works Proposal

by Professional Photographers of America | March 1, 2006

NatureScapesThe Copyright Office has suggested legislation that, in its current form, could have a devastating impact on the professional photographers. The proposal would limit, or in some cases eliminate, the damages available against an infringer of an orphan work. An orphan work is a work presumed to have copyright protection, but whose owner cannot be located even after a reasonably diligent search conducted in good faith.

Professional Photographers of America (PPA) notes that while it does not oppose the creation of a narrow orphan works exception, the Copyright Office proposal goes too far by making it impossible for a copyright owner who later discovers the use of an orphan work to recover even a reasonable royalty. For the last three weeks, PPA has been actively lobbying Congress to make sure that any orphan works legislation that is introduced differs significantly from the original proposal.

“While well-intentioned, the Copyright Office’s proposal would strip thousands of photographers and other visual artists of their rights,” says PPA CEO David Trust. “Unless major modifications are made, legislation based on this proposal would be disastrous.”

Of particular concern is a portion of the proposed statute that would deny any monetary relief to the owner of an orphan work if the infringer’s use was not for commercial advantage and they stopped the infringement when notified by the rightful owner. According to PPA, the statute fails to consider that for the vast majority of professional photographers, non-commercial personal use copying would obliterate the entire market for their work. In addition, most photography infringements have long been completed by the time they are discovered, so requiring that an infringer cease the infringement is, at best, meaningless. The provision also creates a situation where a copyright owner proves infringement and “wins” his lawsuit but is left with no award of damages, legal fees or costs.

The other troubling section of the proposal concerns damages for commercial uses of orphan works. Under the proposal, the maximum monetary award in these cases is a “reasonable royalty” for the use; attorney fees, costs and statutory damages are all unavailable.

“While the award of a reasonable royalty sounds good in theory, the reality is that when you are paying hundreds of dollars an hour in legal fees, the damages proposed in this statute are worthless,” adds Trust. “Under the current proposal an orphan works infringement would not generate enough in damages to make a suit economically viable or even to make the threat of such a lawsuit credible.”

Despite the problems with the proposal, Professional Photographers of America has not yet mobilized its 15,000 members to action. Instead, PPA will make a direct appeal to the members of the House Intellectual Property Subcommittee on March 8 when it testifies at a hearing on this issue.

“If Congress introduces legislation that follows the Copyright Office proposal as written, then we will mobilize our members to immediate action,” notes Trust.

Additional Information

Technical questions regarding the legislation should be addressed to Stephen Morris in PPA’s Copyright and Government Affairs Department. He can be reached at 404-522-8600, ext. 253 or by e-mail at

About the Author

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