The SAA Orphan Works Blog

Orphan Works: Not Dead Till It's Dead

2008-10-01T16:46:00.000-07:00

FROM THE ILLUSTRATORS' PARTNERSHIP:

Wired Magazine has posted an article:
"Orphan Works' Copyright Law Dies Quiet Death"

Well, we can hope.

But we're dealing with a.) a fluid situation in Washington; and b.) special interests determined to pass this bill. So our assessment: It's not dead till it's dead.

According to our DC sources, the most efficient way for Congress to pass this bill now would be for the House to scrap their own version and adopt the Senate's. There are procedural ways they can do this. Some say they will; some say they won't. It's enough to know they can.

There are special interest groups promoting the House bill now: big stock houses, for example, like Getty and Corbis, and groups working with them. They want an infringer-friendly "dark archive," a privately-owned "entity" sanctioned by the Copyright Office where infringers would file a notice of intent to infringe a work.

Since artists would not have access to this dark archive, the "sanctioned entity" would be of no use to us until our work has been infringed and we've filed a case in federal court. And then it would mostly serve the interests of infringers - letting them prove in court they had done the minimal necessary paperwork before they infringed.

The important thing to remember about the House bill is that there is no protection for artists in it. It would simply give more middlemen a chance to profit from this gutting of copyright law.

We know it's hard to ask Congress to focus on copyright law with a financial crisis looming. But we didn't pick this fight and it's our rights at stake if we don't. There is no national emergency for orphan works that requires Congress to pass this bill - which was drafted in secret - in the dark of night.

Please contact your House Representative today. Tell them not to pass the House bill. Tell them not to adopt the Senate's.

- Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership

Over 75 organizations oppose this bill, representing over half a million creators. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

EMAIL CONGRESS: Send email now
2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world's artists.

CALL CONGRESS: 1-800-828-0498.
Tell the U.S. Capitol Switchboard Operator "I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act." The switchboard operator will patch you through to the lawmaker's office and often take a message which also gets passed on to the lawmaker. Once you're put through, tell your Representative the message again.

INTERNATIONAL ARTISTS
Please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention.

For more news and information: Illustrators' Partnership Orphan Works Blog
To be added to their mailing list, email illustratorspartnership@cnymail.com

Orphan Works: The Bill's Not Law Till it's Law

2008-09-30T08:15:00.000-07:00

FROM THE ILLUSTRATORS' PARTNERSHIP:
Yesterday, nearly 5,000 copyright holders wrote Congress. They urged their representatives not to let the House pass the Orphan Works Act (H.R. 5889). They urged them not to scrap the House bill and adopt the Senate's. So far they haven't.

That makes nearly 8,000 of us who've written Congress since last Friday. We thank all of you who've written. Keep writing. Tell others to write. The bill's not law till it's law.

TAKE ACTION: EMAIL CONGRESS NOW
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

ACT NOW! Senate Orphan Works Bill passed; House expected to follow.

2008-09-27T08:47:00.000-07:00

Yesterday, the visual arts community was buzzing with news that the Senate was "hot lining" the Orphan Works Bill (S2913) for a vote that afternoon, and that the House was expected to follow suit. Artists trade associations, including SAA, hurried to urge our members to call or email their Senators and Representatives right away and we have no doubt that the response from artists was once again strong, even late on a Friday afternoon.

We've now learned that the Senate bill was passed.
It is troubling indeed that this legislation was pushed through in this manner, the last day of the Congressional term, and a time when the Congress is embroiled in responding to an economic crisis. As our colleagues at the Advertising Photographers of America (APA) have declared, in their email alert posted at Friday midnite: "Passing controversial legislation by this process, i.e. under the radar, is deeply troubling to say the least and every Senator needs to be held accountable."

We now need to turn our attention to the House.
We need to stop the House Judiciary Committee from folding their own bill (HR5889) and moving to adopt the Senate version.

PLEASE EMAIL CONGRESS RIGHT AWAY.
GO TO: http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

The CapWiz site is set up to make this a very quick and easy process.
A letter is prepared, and all you need to do is enter your contact information.

70 organizations have united in opposing this bill in its current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. With thanks to the Illustrators Partnership, the Capwiz site is open to professional creators and any member of the image-making public.

Small Business Administration (SBA) Roundtable on Orphan Works, August 8, 2008

2008-08-03T15:26:00.000-07:00

Reposting this announcement of an Orphan Works Roundtable
and Webcast conducted by the Small Business Administration (SBA):

How Will the Orphan Works Bill Economically Impact Small Entities?

August 8, 2008, 10 a.m.—12noon
Salmagundi Club, 47 Fifth Avenue (between 11th & 12th Streets), New York City
http://www.salmagundi.org
Free Admission

Please attend this important industry event. Let government officials hear directly from those of us who will be harmed if this bill passes.

Until now, the Orphan Works bill has been driven by anti-copyright forces and special interest groups. This will be our first opportunity to be heard in a government sponsored forum devoted to the business interests of copyright holders.

The Roundtable will be chaired by Tom Sullivan, Director of the Office of Advocacy of the Small Business Administration (SBA). It will give artists from the Northeast the chance to explain the impact of Orphan Works legislation on our careers and the art we create.

* Will the cost of compliance create an unreasonable burden on artists, writers and musicians?
* Will the failure to register work lead to the loss of copyrights?
* Why should artists be forced to supply their business data to commercial databases?
* Will the bill create a new business model favoring large corporations at the expense of individual artists?
* Will this change the nature of competition for all of us?

Eighteen distinguished panelists from the creative community will represent the copyright interests of illustrators, photographers, fine artists, art licensors, writers, musicians, and the collateral businesses that serve and are dependent on creators.

Learn more at http://ipaorphanworks.blogspot.com/2008/08/80808-sba-hearing-on-orphan-works.html

The event will be webcast.

PLEASE RSVP to illustratorspartnership@cnymail.com and include the names of those attending.

Leading Photo Groups Urge Congress to Amend Orphan Works Bills

2008-07-17T14:56:00.000-07:00

July 16, 2008. A growing chorus of concern, even outrage, about the current Orphan Works legislation demonstrates the importance of this issue for most photographers and other visual artists.

Meantime, representatives from organizations that include the largest share of U.S. advertising, editorial and stock photographers have been meeting with members of Congress and key staff. Their discussions have focused on seeking solutions for the problems of unidentified creative works and missing creators, while preserving constitutional protections for intellectual property.

The Advertising Photographers of America (APA), the National Press Photographers Association (NPPA), the Stock Artists Alliance (SAA) and Editorial Photographers (EP) have all stated they cannot support the Orphan Works bills in their current form. Together, these groups represent more professional media photographers than other U.S. organizations.

In recent months, representatives from APA and NPPA have met with members of Congress and legislative staff to express their concerns regarding Orphan Works bills S2913 and HR5889. The photographers' representatives offered potential solutions for limiting the legislation to works that are truly "orphaned," for non-commercial use by the cultural heritage sector - particularly non-profit libraries, museums and archives.

The associations stressed the legislation must not violate international trade agreements or cause harm to existing commercial markets. Also, a well-crafted bill can and should maintain the rights of working artists as they exist under current copyright law.

International photographer groups have also expressed their opposition to the orphan works legislation in its current form. Among those groups are the UK's Association of Photographers (AOP), FreeLens, Union des Photographes Créateurs (UPC), and the Canadian Association of Photographers and Illustrators in Communications (CAPIC).

Very vocal in their opposition are groups collectively representing more than a quarter-million visual artists and other creators, including leading associations in North America and Europe. More than 60 groups have endorsed an online resource, created by the Illustrators’ Partnership, that facilitates sending opposition messages to Congress. These groups comprise a broad community of creators, including illustrators, fine artists, graphic artists, digital artists, cartoonists and musicians. To date, more than 100,000 artists have used this resource to contact their senators, representatives and Judiciary Committee members.

This coalition of artists groups agrees Orphan Works legislation must be narrowly crafted to serve the needs of the cultural heritage users for whom it was originally conceived - giving them access to truly orphaned works - while protecting the copyrights and livelihoods of artists.

Lawrence Lessig Calls Orphan Works Unfair and Unwise

2008-05-20T10:39:00.000-07:00

"CONGRESS is considering a major reform of copyright law intended to solve the problem of “orphan works” — those works whose owner cannot be found. This “reform” would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public."

Readers may be surprised that this was written by Lawrence Lessig, in an Op-Ed article which appeared today in the New York Times. Lessig, the Stanford law professor who's well known as one of the founders of the "creative commons" movement, strongly opposes the proposed legislation as "unfair and unwise."

Other comments from Lessig:

"...precisely what must be done by either the infringer or the copyright owner seeking to avoid infringement is not specified upfront. The bill instead would have us rely on a class of copyright experts who would advise or be employed by libraries. These experts would encourage copyright infringement by assuring that the costs of infringement are not too great."

"The bill makes no distinction between old and new works, or between foreign and domestic works. All work, whether old or new, whether created in America or Ukraine, is governed by the same slippery standard."

"In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts."

Read the full article at:
http://tinyurl.com/4emo8g

Canadian Artists Group Opposes Orphan Works, Citing Worldwide Impact

2008-05-20T10:04:00.000-07:00

CAPIC, The Canadian Association of Photographers and Illustrators in Communications, has just announced its opposition to the proposed 2008 Orphan Works legislation. Their position highlights the impact of this legislation on all creators, worldwide.

In a letter sent to the association's members, CAPIC Copyright Chair Andre Cornellier states "Even if this Bill becomes a law in the United-States it will have a very big impact on creators around the world, on creators like you and me. This Bill, when passed into law, will not make any difference between the works created by an American citizen and the works created by anyone else in the world. The implication is that EVERY work from everyone in the world would have to be registered in the USA."

CAPIC also contends, "This proposed law violates the international Berne Treaty and the TRIP negotiations (Agreement on Trade Related Aspects of Intellectual Property TRIPs UNESCO.) It may be susceptible to an international lawsuit under international treaties.

Read the letter here.

Photo Advocates Divided Over Orphan Works

2008-05-09T05:28:00.000-07:00

If you haven't been following the flurry of recent blog and forum posts, events, and email blasts, PDN provides the short version.

Orphan Works Bill: Legal Opinions Vary

2008-05-08T11:36:00.000-07:00

Two key photo industry attorneys, Nancy Wolff and Carolyn Wright, weigh in on 2008 Orphan Works legislation in an article that just appeared in Media Post's Selling Stock, a online news magazine that reports on the stock photo industry. Selling Stock has generously granted SAA permission to post the article here.
[We have added bolding]

Orphan Works Bill: Legal Opinions Vary
Posted to Selling Stock, May 7, 2008 by Julia Dudnik Stern, Managing editor/reporter

According to Nancy Wolff, the legal counsel of the Picture Archive Council of America , the congressional version of the Orphan Works Bill of 2008 is an improvement. Wolff specializes in intellectual-property and digital-media law as a partner at New York-based law firm Cowan, DeBaets, Abrahams & Sheppard and says legislators listened and dealt with issues raised by various affected groups.

By contrast, Atlanta attorney Carolyn Wright and author of Photographer's Legal Guide thinks both the House and Senate versions of the bill pose an extreme threat to copyright owners. "While the House version is not as bad as the Senate's, and both are an improvement over the 2006 bill, we still should work to oppose both of them-or at least attempt to make significant revisions," said Wright, a lawyer with big-firm litigation experience, a professional photographer and the woman behind the popular PhotoAttorney blog.

Among the problems Wright sees in the proposed law is the potential availability of an orphan-works defense to commercial users. She quotes the U.S. Copyright Office's orignal announcement, which said the purpose of new legislation was to address the concern that the uncertainty of orphan-works ownership might needlessly discourage their use in new productive efforts, such as making works available to the public. "This can be accomplished without giving advertisers and merchandisers free reign to commercially use photographs," said Wright, who thinks that modifying the fair-use statute would be a better way to address many of the concerns that have purportedly prompted the orphan-works proposal.

Another issue characterized by Wright as major is the determination of reasonable fees, which the new law mandates be paid to the copyright owner, if found. "If the infringer and the photographer disagree on what is reasonable compensation, the photographer will have to file suit to pursue higher payment," she explains, "but the photographer will not have the potential benefit of having costs and attorneys' fees paid if the court determines that the orphan-works defense has been established.

Under the current law, courts can award costs and attorneys' fees, based on variety of factors." Since the filing fee of $350 is arguably more than some reasonable license fees, Wright thinks such lawsuits are likely to be cost-prohibitive, forcing photographers to accept lower fees. "Each bill's mandate for a study on remedies for small copyright claims won't help photographers with these problems in the interim," she elaborates.

Wright agrees with the Stock Artists Allance's analysis of the legislation and supports the organization's proposals for amendments. The American Society of Media Photographers, the Graphic Artists Guild, the Illustrators Partnership of America and Advertising Photographers of America are among other organizations that have issued formal statements. ASMP has endorsed the House version of the orphan-works bill, the Guild is taking a neutral position and the IPA and APA vehemently oppose both versions of the legislation.

PACA is not opposing the bill. Wolff is currently working with a Washington-based attorney to suggest modifications to some of the language. Overall, the view of PACA's legal counsel is positive and pragmatic. She said: "Taking an extreme position can lead to Congress saying, 'We are never going to make you happy, so we are not even going to listen to you.'" Wolff also thinks that concerns over upcoming leadership changes are valid and the bill may face a tougher audience if delayed until the next session of Congress.

Among improvements introduced since the 2006 proposal, Wolff points to the increased requirements on users, who now have to file prior notice with the U.S. Copyright Office and conduct a reasonably diligent search for the copyright owner. The burden of proving due diligence is on the user, should a lawsuit ever come to pass. The House bill also limited the previously over-broad safe-harbor provision.

According to Wolff, the provision for reasonable compensation is a good thing. "Companies that fail to negotiate compensation in good faith and within a realistic timeframe can lose the orphan-works defense," she said. Addressing the most-often raised criticism of the bill, Wolff points out that "what constitutes 'reasonable compensation' is not an orphan-works problem, but a damages and valuations problem you run into when trying to negotiate" licensing fees for image use or court-awarded damages for copyright infringement.

The judgment of what is reasonable will be up to the courts, which will take into consideration market conditions. "Microstock outlets license images for $1, but if your work is only licensed at traditional prices or is rights-managed, the court will consider that," Wolff said.

The proposed bill could also offer photographers the opportunity to pursue copyright infringement in a small claims court. While some consider this an ineffective venue, Wolff thinks it goes a long way toward limiting photographers' expenses. "The legislators recognize that if you are going to limit remedies by depriving copyright owners of statutory damages, you also have to limit the owners' expenses in trying to collect."

Wolff and Wright agree that legal costs of copyright enforcement are often prohibitive. Both attorneys also share other orphan-works concerns, such as the role of privately developed databases that can monopolize the registration process and enforce high fees. In addition, both see the legislation having far-reaching effects if passed.

Wright says that specific applications will only become known through the development of case law and/or future amendments to the statute, which can take years. "Similar to the challenges of determining whether a use qualifies as fair use, I and other attorneys will have to tell photographer clients that we don't know what we can expect to recover for infringements, and that we can't represent them without charging our expensive hourly fees," she elaborates.

Wolff describes a series of immediate but indirect consequences, such as photographers and stock agencies working with industry groups to define best practices. She also points to a higher burden of being found, suggesting an increasing need for registering work, new databases and business models. Wolff hopes that the PLUS Coalition can offer technical assistance.

About Selling Stock Online
Established in 1995, this daily online newsletter reports on the worldwide stock photography industry with an emphasis on the U.S. market. The coverage focuses on issues of interest to stock photographers, agencies, distributors and investment analysts.The service is subscription based.

The Stock Artists Alliance Speaks Up About Orphan Works 2008

2008-05-05T07:37:00.000-07:00

SAA has just published extensive commentary about 2008 Orphan Works legislation just introduced by both Houses of Congress, as a resource for artists and other members of the visual arts community who will be affected by this legislation.

Visit SAA's Orphan Works page
http://www.stockartistsalliance.org/orphan-works

We urge Congress to amend the bills and we offer specific recommendations. Unless this legislation is put forth in a way that balances the needs of the users whom they are trying to serve with the interests of the copyright holders whom they must continue to protect, we again risk passage of legislation that will threaten copyright protections and the livelihoods of independent creators.

Orphan Works Bills have Arrived

2008-04-25T06:44:00.000-07:00

Yesterday, both the House and Senate introduced their versions of the Orphan Works Act of 2008.

Senate Version S.2913 - Shawn Bentley Orphan Works Act of 2008

House version H.R. 5889 - Orphan Works Act of 2008

Orphan Works is Back

2008-03-30T20:09:00.000-07:00

Six months after the last version of an Orphan Works bill died in a Congressional committee, a new Orphan Works bill is being drafted for consideration in the 2008 legislative session.

Fortunately, a coalition of associations representing the interests of the image licensing community has come together due to our collective concern on this issue. The goal of our "Imagery Alliance" is to present a coordinated response.

On March 13, Imagery Alliance member ASMP had an opportunity to speak up. ASMP's General Counsel, Victor Perlman, was invited to give testimony at a hearing of the House Subcommittee on Courts, the Internet and Intellectual Property, and to testify on behalf of creators.

Read ASMP's report

Information on the March 13 hearing including a video webcast and transcripts of witnesses is at the House Committee on the Judiciary website.

Orphan Works, A Global Issue

2007-03-25T23:19:00.000-07:00

For those outside the US who have been observing the intense debate over proposed Orphan Works legislation to change U.S. copyright law, the debate has now erupted in the UK as well in response to proposals made in the recently published report of The Gowers Review of Intellectual Property (pdf here)

This latest news should be a wake-up call that the challenges to protecting intellectual property are neither a US issue nor a UK issue, but a worldwide issue affecting all rights holders. As the British Journal of Photography puts it, proposed copyright legislation poses a fundamental threat to photographers “on both sides of the Atlantic.”

The Gowers Review was commissioned in late 2005 to address all elements of the UK intellectual property system. In 2006, SAA answered the Gowers Review Call for Evidence with a document that addressed the specific issue of Copyright – Orphan Works and offered alternative suggestions on how this problem could be overcome.

In their final report, the independent review has recommended that the UK adopt a similar policy to what U.S. Orphan Works legislation is proposing, namely that works can be used if the copyright owner cannot be found after a 'reasonable search'. The European Commission will make the final decision but as BAPLA’s Linda Royles told the BJP, “we are now looking at this as a damage limitation exercise, and we are looking at it with some concern.”

SAA’s Legal Chair, David Sanger explains the problem with the proposed U.S. legislation this way: “ Before the bill, orphan works in the US were largely thought of as an issue only affecting museums and large archives. This proposal would affect all artists, as any work – from dusty old prints to high-end advertising campaigns, could become orphan works. When we moved into the digital era, we became victims of an inadequacy of technology. There are no mechanisms in place to make sure that author information could be permanently fixed to the file. Now, as a result, there are naked files all over the place.”

SAA’s Metadata Manifesto addresses one essential component that’s needed to provide a solution – permanently embedded metadata in digital files. Another critical step is the development of resources to link “orphaned” images with their owners. The PLUS Coalition is developing a system of centralized registries designed to help potential image licensees locate and contact licensors and copyright owners.

Orphan Works Tops the Agenda of new Coalition of Visual Creative Associations

2006-11-14T11:38:00.000-08:00

For the first time ever, a diverse group of representatives from associations of photographers, stock archives, graphic designers, illustrators and educators, met to discuss pressing business topics. This group of organizations represents more than 100,000 image professionals.

The 18 associations represented were:

Association of Photographers (AOP) (UK)
Advertising Photographers of America (APA)
American Society of Media Photographers (ASMP)
American Society of Picture Professionals (ASPP)
British Association of Picture Libraries & Agencies (BAPLA)
Coordination of European Agencies Press Stock Heritage (CEPIC)
Editorial Photographers (EP)
North American Nature Photography Assoc. (NANPA)
National Press Photographers Assoc (NPPA)
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Society for Photographic Education (SPE)
Stock Artists Alliance (SAA)
White House News Photographers Assoc. (WHNPA)
Art Directors Club (ADC)
American Institute of Graphic Arts (AIGA)
Graphic Artists Guild (GAG)
Picture Licensing Universal System (PLUS)

Throughout the daylong meeting in New York City on October 31st, presentations were made by industry experts on subjects that are the most pertinent to the industry. Discussions centered on emerging industry tools that affect the memberships of all the groups and included metadata technical standards, image registry and on the robust protection of artist’s rights via copyright education. European associations who joined in this historic summit provided an international perspective.

The meeting took at tone of urgency when the focus turned to Orphan Works legislation, which is still pending in Congress. In order to raise the consciousness of lawmakers, their membership and the public, the associations agreed to work together to continue to inform and educate on this important matter.

The group consensus was there was a great benefit to working together to attain common goals. The day was so productive that the attendees agreed unanimously to continue meeting on a regular basis either by teleconference or in person.

As a result of the day’s dialogue, an ad hoc coalition was formed to provide greater communication and cooperation between the associations. Two working committees were established to address the issues of Orphan Works and image registries. In addition, ongoing mechanisms were created for prompt and efficient exchanges of information between the associations.

The leadership of ASPP and PACA initiated this historic meeting, which was hosted by the Society of Illustrators. For additional information about the day’s events and topics of discussion please contact the meeting’s facilitator, Joe LaCugna at jlacugna@comcast.net.

Copyright legislation delayed

2006-09-28T13:21:00.000-07:00

After all the hard work of photography and illustration community, the Copyright Modernization Act of 2006, HR6052, which incorporated the Orphan Works legislation, has been withdrawn.

With time so short in this session of Congress, and additional consumer opposition to some of the music industry provisions of the bundled bill, there clearly was no chance of passage this year

We fully expect Rep. Lamar Smith (R-TX) to reintroduce the bill next year.

In the meantime ASMP along with other photography groups will have time to plan for a more favorable bill. Check the ASMP Orphan Works site for more details.

Thanks to everyone for all your letters and hard work.

Orphan Works Bill now part of HR 6052

2006-09-14T09:35:00.000-07:00

The Orphan Works Bill now has been folded, without change, into a larger bill, HR6052, called the Copyright Modernization Act of 2006. Also included are unrelated copyright law changes affecting digital music download. Markup was scheduled for Wednesday September 13, but at the meeting the bill was removed from the calendar.

ASMP’s General Counsel, Victor Perlman, on behalf of the coalition of photography organizations, attended the meeting and reports on the ASMP Orphan Works page :

ASMP is checking with sources on Capitol Hill to see whether there is any significant chance that the bill will be placed on another markup calendar later this year, or whether it is likely to die without further action in this Congress. If it dies in this Congress, proponents of an Orphan Works bill will have to have a new bill introduced in the next Congress (next year), and the whole process will begin again from square one.

ASMP fully expects that, if this Congress ends without passing the bill, the copyright-user community will not rest and will seek to have a new bill introduced next year.

Contact your Congressman

2006-08-12T05:03:00.000-07:00

After extended negotiations the Orphan Works bill emerged as House Bill 5439 and passed out of the Subcommittee to the House Judicairy Committee where it is awaiting action.

We believe that this bill, in it present form, still does far too little to protect photographers' rights and makes it all too easy for users to publish images whose owners cannot be located with little or no payment to the copyright owner.

We urge all members to contact their Congressman and express their opposition to this bill. ASMP has posted a detailed status writeup with information on our letter-writing campaign including a sample letter.

Senate Hearing April 6th

2006-04-06T02:04:00.000-07:00

A hearing on "Orphan Works: Proposals for a Legislative Solution" will be held Thursday, April 6, 2006 at 2:00 p.m. Senate Dirksen Building, Room 226

Photographers and illustrators will be represented by Vic Perlman of ASMP and Brad Holland of IPA.

You can read the ASMP statement on their website

On the panel will be:

Jule L. Sigall
Associate Register for Policy & International Affairs
U.S. Copyright Office
Washington, DC

Victor S. Perlman
Managing Director and General Counsel
American Society of Media Photographers, Inc.
Philadelphia, PA

June Cross
Documentary Filmmaker
Visiting Professor
Columbia University
New York, NY

Brad Holland
Founding Board Member
Illustrators’ Partnership of America
Marshfield, MA

Maria Pallante-Hyun
Associate General Counsel and Director of Licensing
The Solomon R. Guggenheim Foundation
(GuggenheimMuseum)
New York, NY

Thomas C. Rubin
Associate General Counsel
Microsoft Corporation
Redmond, VA

Rick Prelinger
Board President
Internet Archive
San Francisco, CA

Metadata and attribution

2006-03-28T20:56:00.000-08:00

Our recent posts illustrating images which could become "orphaned" under the proposed law have certainly drawn some attention. Jerry Brito, an IP attorney who published articles supporting the proposed orphan works legislation, suggested in his blog that our examples are not fair because we did not identify the sources in which the images were found. He further alleged that copyright owners are careless about providing attribution to their work.

We posted two sets of examples of images taken from contemporary websites and suggested that indeed they would be difficult to trace if they appeared out of their original context and without any metadata.

Mr. Brito suggested that our examples are "disingenuous" because we didn't state the exact site where the images were found and we displayed the images without file names or metadata. His argument is that if we had simply identified the original website where the images were found, then the first step in a diligent search would of course be to ask the site owner where they came from. He implies that a search really would be quite easy.

In fact, this is exactly our point. If you see an image on cnn.com or apple.com (two of the sites used in our sample) you can indeed contact the company and will most likely find the copyright owner.

The problem arises when images are removed from their original source. Photos can easily be dragged from a web browser to the desktop. They can be copied and uploaded to secondary and tertiary sources. Even the major websites often strip metadata for performance reasons. Whatever the cause, once removed from its context and stripped of identifying data even a properly licensed, well attributed image becomes extremely difficult to trace.

This does not always result from illicit activity. It is a major problem for reputable photo buyers. At a recent educational conference of the American Society of Picture Professionals, whose members include researchers from all the major publications, along with stock agencies and corporate photo buyers, art directors spoke of how difficult it is to track images where the metadata or attribution is missing. They often work on publishing projects which require thousands of images. Researchers find images on Google, or download them as comps from stock agencies, or discover them in their own archives from previous projects. File names are often changed. Metadata can be dropped when images are copied. Often art directors want to use an image and find identifying data is absent. Digital asset management systems costing tens and hundreds of thousands of dollars do help keep track of most images, but it is a monumental task.

More problematic of course are people who will seek to abuse the system by deliberately removing source, attribution and copyright information. If the intent is NOT to find the copyright owner then crafting a "diligent' search with that aim in mind would not be difficult.

Stock Artists Alliance, ASMP, EP, APA and other artists' associations all work very hard to educate members and clients about the importance of providing complete metadata in every file delivered to clients. Recently a consortium of photography groups published a newly updated set of guidelines under the banner of UPDIG. Photography associations continue to work with Adobe, IPTC and other vendors and groups to be sure the technology robustly supports key metadata needed by suppliers and buyers alike. Further changes to digital technology may indeed one day make tracking images easier.

Yet despite photographers' best efforts, such key information cannot be guaranteed to stay with the file.

Brito adds a second point about attribution, alleging that "authors/owners today feel free to release those works without attribution knowing that they will retain their full rights." Unfortunately this represents a misunderstanding of the standard business practices of professional photographers. Amateur photographers might be cavalier about distributing their images with abandon to everyone who asks. You'll see little copyright attribution on Flickr. But professionals well understand how essential it is to correctly and accurately identify every images which leaves the studio. A review of association websites and event schedules will see a wealth of seminars, tutorials and guidelines on proper delivery and attribution of images and how to diligently register images with the Copyright Office.

What happens when images leave the studio is another matter. Standard practice in many media (TV, print ads, brochures etc. ) is not to include attribution. Even in editorial publications where attribution has been the norm, it is still not guaranteed. To suggest that photographers press for better contracts, in a world where publication contracts are already heavily publisher-friendly, is itself disingenuous.

Further, to suggest as Mr. Brito does, that photographers would actually encourage unattributed use so "they will be able to pop out, sue, and collect heavy damages from an unsuspecting user who couldn’t find them to ask for permission" is just preposterous. Anyone who has pursued a copyright infringement case knows that it seldom is a fruitful exercise.

The problem with attribution is that, like metadata, it is too easily removed. Careless or unscrupulous operators can clip, snip, copy and flip and suddenly there's no record of where the printed picture in a magazine came from.

Imagine a law that said that an automobile owner was responsible for keeping license plates on her car and the registration in the glove compartment and that if the car were stolen, and the plates and registration removed, anyone who found it would get to keep it.

A proper solution to the orphan works issue would be carefully crafted and narrowly focused to avoid this kind of abuse.

Images of Orphans, not Orphan Works

2006-03-21T18:08:00.000-08:00

We searched the internet and found these eight images from a variety of sources.

It was easy enough to find them, but would not be easy to find some of them again.

None had file names that were helpful, and none had any metadata at all.

So if you cannot locate the source after doing your own “diligent search,” should you feel free to use them anyway?

If you did - and Orphan Works legislation passes as proposed, you wouldn’t have to worry about infringing on the copyright owners or their representatives who are..

A Major Right Managed Stock Distributor
A Contemporary Illustrator
A Small Historical Collection
A Royalty Free Stock Distributor
An Encyclopedia
A Large Public Library
A Bookseller
A U.S. Government Site

If you can find the copyright owner of any of these, or if one of these is your photo, add a comment below.

Not Just Photos at Risk

2006-03-21T09:13:00.000-08:00

The "Orphan Works" proposal was initially requested to respond to a fairly narrow need. Museums and libraries often want to publish valuable material from their large archives of historical works. Even after an exhaustive and comprehensive searches they sometimes cannot locate the copyright owner to negotiate permissions. The original intent was to somehow limit their liability in these cases if the author were to emerge later on, while at the same time protecting the rights of the copyright owner.

Visual artists are sympathetic to these concerns. A carefully crafted, narrowly focused proposal could indeed resolve the issue.

Instead, what we got from the Copyright Office is an extremely wide-ranging exemption from liability for all users, for all works, in vaguely defined circumstances, along with the removal of effective deterrents for infringement in cases far removed from museums and libraries.

It is like a homeowner who has trouble with the front door key jamming at night in the dark and calls a locksmith for help. After careful study the locksmith comes up with a solution - "to remove the front door." Not a great idea!

It turns out that a lot more than historical archival works are potentially affected, and a lot more than just photographs.

Copyright protection also extends to textile designs, carpets, quilts, and clothing. It covers jewelry, sculpture, stained glass and wallpaper. It includes prayers, tattoos, fonts, advertising jingles and sheet music....and more.

Imagine how readily a user could come upon one of these works, search for the copyright owner, and then proceed to use the work as an "orphan."

Copies of a fabric design found in an Asian flea market, the melody of a half-remembered hymn, the letters of a purloined font found on the internet, a quilt bought long-ago at a country fair. All of these are fair game under the current proposal.

It is a lot more than photographs that are at risk.

The Next Generation: Stock "Orphans" for Commercial Use?

2006-03-11T07:50:00.000-08:00

In the world of Oliver Twist, orphans had no rights and were subject to all manner of abuses. If the proposed "Orphan Works" changes become law, the same may be true for a new generation of "orphan" images, especially stock images created explicitly for commercial uses.

It started with a laudable objective: to make it easier for non-profit educational institutions to use culturally valuable material whose authors are obscure or unknown without fear of liability for copyright infringement. The original request by Congress to the US Copyright Office asked for “an inquiry surrounding the use of older copyrighted works whose owner could not be located” and was aimed at “libraries and archives” [letter Hon. Lamar Smith, Jan 7, 2005]

Yet the proposal that the Copyright Office delivered back to Congress a year later went considerably beyond this limited scope by including all commercial works, old and recent, including images found on the internet and un-attributed images found in contemporary magazines and advertising. Furthermore, there's no distinction made between the non-profit educational users for whom the bill was intended and commercial users.

Consider the workflow of the typical stock image user – an art director, designer or corporate art buyer - downloading hundreds or thousands of images every year from stock distributor web sites like Getty Images and Corbis for comps, reference or future use. Any stock user knows that simply downloading an image one day can easily lead to the creation of an “orphan” the next day. Add to this those who are sourcing images from printed material or the internet that are un-attributed.

These creative professionals know that any contemporary image that they'd like to use in their brochures, ads, promotion and web site designs does have an owner and that the source is likely a stock distributor web site or an individual artist.

Identifying the image source can be difficult however - despite the best efforts of the copyright owner - since creator/contact information is often lost as digital image files are saved, resaved or processed into derivative form. There's also no technological means to ensure that information moves along with the images (such as a "lock" on the metadata), so the chances of losing identification of the image increases as it passes from creator to distributor to initial user to company archive and beyond.

For these reasons, copyright owners are already challenged to manage the rights and uses of their digital stock images. We must rely on licensees to maintain proper identification of the image files in their possession so that they can meet their obligation to properly license images prior to use, or re-use. This is a challenge for them as well, as their collections of digital assets grow, and wholly dependent on their ability and commitment to maintaining an effective digital asset management (DAM) system.

Today, we are assisted by the force of Copyright Law to motivate and obligate these users to properly license our images in advance of use. Relaxing that obligation - as the current "Orphan Works" proposal would do - essentially de-motivates users by providing them the option for permissable unlicensed use of "orphans."

Worse yet, it would in effect invite image theft. We are keenly aware that intentional infringement of stock images on the internet is already a serious problem, one that SAA has been investigating using PicScout advanced image recognition technology. [Our report of the 2005 SAA/PicScout Study will be released shortly.] It is ironic that as the stock industry is just gearing up to effectively address the issue of unauthorized uses, this “Orphan Works” legislation could undermine it by offering a loophole that will no doubt result in increased theft.

"Orphan Works" legislation was conceived to assist the museums, libraries and universities who seek to make our cultural heritage available to the public, without any purpose of commercial advantage. We see a world of difference between addressing the need of a library to digitize an older archived work for scholarly purposes, and that of a business who makes use of a contemporary image to promote their product or service. Yet the current language of the "Orphan Works" proposal makes no distinction between them.

Why should commercial users who seek to profit from the use of imagery from contemporary photographers be entitled to do so without proper license under any circumstances? How does this serve the purpose and spirit for which this "Orphan Works" proposal was made?

Betsy Reid, SAA Executive Director

March 8th Hearing Documentation

2006-03-09T14:56:00.000-08:00

©2006 Chris Kleponis/Stock Artists Alliance
Washington, DC - March 8, 2006 - Testimony is delivered on the Orphan Works Proposal to the Committee on the Judiciary. (l-r) Maria Pallante, Guggenheim Foundation, David Trust, CEO of the Professional Photographers of America (PPA), Allan Adler, of the Association of American Publishers, and Jule Sigal of The Copyright Office.

Audio mp3's of March 8th hearing

part 1 part 2 part 3 part 4 part 5

Written Testimony

David Trust, PPA
Allan Adler, AAP
Jule Sigall, CO
Maria Pallante, Gugggenheim

Professional creative community concerns

2006-03-08T13:21:00.000-08:00

The professional creative community is abuzz with concern over the speed with which “Orphan Works” legislation is moving ahead, and the disturbing implications for us all if the bill passes as proposed by the Copyright Office.

Following is some of the commentary from the trade organizations that represent the interests of stock photographers and distributors, illustrators, photojournalists, editorial and advertising shooters, along with respected journalists…

"The solution proposed by the Copyright Office to the problem of museums and libraries use of archival materials, is too far-reaching and has too many unintended consequences. It would make it impossible for photographers to get a fair return if an image is orphaned'.
"We urge the user community and the House Subcommittee to work with us to amend the proposal to maintain effective copyright protection for creators."
- David Sanger, President, Stock Artists Alliance (SAA)

“The entire stock photography industry depends on a robust copyright licensing and enforcement regime. Loosen the restrictions and unauthorized use will skyrocket.”
- Jim Pickerell, Selling Stock

“For artists, this legislation would be a major revision of copyright law. In effect, a repeal of the 1976 Act. The Orphan Works Report calls for a 10 year “sunset provision,” which means that the legislation will be subject to reevaluation in 10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them.”
- Brad Holland, Illustrators' Partnership of America (IPA)

"It will practically make photographs public domain."
- Nancy Wolff, General Counsel, Picture Archive Council of America (PACA), as reported by PDNonline

"The proposed legislation allows the user of an image to declare it an “Orphan Work” too easily. It sets the bar too low, putting no clear burden on the user to determine the author of a work which carries no authorship information. For example, a web-designer who finds a photo from an old print advertisement for a company now out of business can claim to have tried to contact the company to no avail and declare the work “orphaned.”
- Chris Ferrone, About the Image

“This proposal is a disaster for visual creators. It is heavily slanted in favor of users. If this statute is enacted as it, we can pretty much kiss our careers goodbye.”
- Lisa Shaftel, National Advocacy Committee Chair Graphic Arts Guild (GAG)

"In my opinion, if that language is enacted in its current form, it will be the worst thing that has happened to independent photographers and other independent visual artists since Work Made for Hire contracts.”
- Victor Perlman, General Cousel and Managing Director American Society of Media Photographers (ASMP)

"Proposals in the Orphan Works report would make it easier for people to use your images without your permission, and make it harder for you to collect the money you're owed when they do. This should concern photojournalists, because many published images are copied and recopied without permission. If credits are removed in this process, making it difficult to identify the copyright holder, the image could be considered 'orphaned.'"
- Alicia Wagner Calzada, President National Press Photographers Association (NPPA)

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

“While this proposal could cause serious problems and financial loss for creators of all kinds of original works, it could be especially devastating for commercial photographers and illustrators whose work is often published without attribution. Worse yet, intentional infringement -- not uncommon in this digital age -- could easily result in many works being declared "orphans" under this proposed legislation. Illegal infringers rarely provide attribution.”
- Ron Rovtar, The Stock Asylum

“Given the infrequent use of photo credits beyond the editorial print world -- advertising, corporate publications, and much of the internet make use of photographs sans credit -- photographers face the very real threat of having their published photographs eventually counted as Orphan Works.”
- Shawn G. Henry, VP, Editorial Photographers (EP)

House Subcommittee Hearing Today

2006-03-08T08:49:00.000-08:00

If you are in Washington today, March 8th, go on down to the Rayburn House Office Building, room 2141, at 2pm for the House Subcommittee on Courts, the Internet, and Intellectual Property Oversight Hearing on "The Report on Orphan Works by the Copyright Office."

Watch entire the webcast(updated)

Stock Artists Alliance Launches Blog on “Orphan Works”

2006-03-06T14:26:00.000-08:00

FOR IMMEDIATE RELEASE
Stock Artists Alliance Launches Blog on “Orphan Works”

March 6, 2006. The Stock Artists Alliance has launched a blog to provide up-to-date news and commentary to the stock community on proposed "Orphan Works" changes to US Copyright Law.

This legislation, as proposed by the U.S. Copyright Office, would pose a serious threat to stock photographers by removing protections from unauthorized use of our images. The bill, now in draft stage, is being "fast tracked" through Congress and has a good chance of passage before the end of the current session.

SAA is fully engaged on the "Orphan Works" issue and we are working to advocate changes to this bill to preserve our copyright protection. We have joined with fellow trade organizations to form an active Coalition of that has quickly come together to fight this threat to the livelihood of independent artists as well as those engaged in the distribution of our images.

What SAA brings to the Coalition, and to both legislators and supporters of the bill, is an understanding of the Stock Photography business. We hope that by articulating our concerns, we can help to persuade Congress of the need to preserve the copyright protection for photographers in their drafting of “Orphan Rights” legislation in the coming weeks.

There will be frequent updates and commentary posted to SAA's Orphan Works blog at http://orphanworks.blogspot.com/

About SAA:

SAA is a global trade organization dedicated to protecting the rights of stock photographers. For information about SAA's programs and initiatives, visit the SAA web site.

Contacts:

David Sanger, SAA President
Betsy Reid, SAA Executive Director
Leif Skoogfors, SAA Board and Legal Chair

SAA Attending Congressional Hearing

2006-03-06T11:50:00.000-08:00

Your faxes have been heard, and because of it, SAA and other Coalition members are being noticed. This has allowed what is perhaps the most useful strategy to attack this issue to emerge. We are gaining access to legislators and, in the past week, some legislative aides have followed up by asking supporters of the “Orphan Works” changes to contact SAA to understand why stock photographers are concerned about the negative impact of this bill as written.

On March 8th supporters of “Orphan Works,” which include the Copyright Office, will give testimony before a Congressional Committee. This is the first step in any legislation and SAA will be at hearing. After that date, there will be a brief window of opportunity for comments to be added to the record as Congress prepares to draft final language for the bill. SAA will be actively participating in this process. While it seems clear that an Orphan Work bill will be passed, we have the opportunity to help craft final language.

SAA is a small part of a large coalition that has quickly come together to fight a threat to the livelihood of independent artists as well as those engaged in the distribution of our images. What SAA brings to the coalition, and to both legislators and supporters of the bill, is an understanding of the Stock Photography business. We hope that by articulating our concerns, we can help to persuade Congress of the need to preserve the copyright protection for photographers in their drafting of the “Orphan Rights” legislation. Please be prepared to do your part when we again call on you to communicate to your legislators. There will be frequent updates as we move forward.

Leif Skoogfors
SAA Legal Chair

These are not orphans

2006-03-05T19:36:00.000-08:00

There are two main premises which underlie the Copyright Office's recent proposal on Orphan Works. They are that 1. copyright management information is usually attached to the creative work; and 2. it is possible to search for the copyright owner.

Neither of these assumptions are generally true in the case of images found online. To test the first assumption, Stock Artists Alliance examined every image which was found on the top 30 websites according to alexa.com (the home page or in some cases a secondary page). Also included were a couple of leading library and museum sites.

Of the 144 images which were copied and examined, how many had embedded copyright information? None! That's right, not a single one! Only two of the 144 had identifying info on the front of the image.

One can be quite certain that almost all of the images, photographs and illustrations, are copyright. Most are likely licensed from major stock agencies, perhaps under an exclusive licensing agreement. Most are likely model released. Some are of famous art works. Some are of movie stars. Some are corporate images no doubt shot on an exclusive commissioned basis.

As a prospective user under the proposed orphan works statue, if you found one of these jpegs on a online database, perhaps from some remote country, how you would do a 'good faith, reasonably diligent search for any of these images? Where would you start? When would you give up?

As a copyright holder, if you found one of these images used online under a claimed 'orphan' status, your only recourse would be to try to get payment from the infringer for the use. No attorney's fees. No damages. No lawyer would take your case.

As a major stock distributor, Getty or Corbis, you would be in the same position, no attorney's fees, no damages.

As the website owner who paid perhaps 4 figures for home page usage, you'd have no recourse whatsoever, even if you had an exclusive license.

As a corporation who had commissioned one of these images for corporate use only, you'd have no recourse either, if your custom image was 'orphaned'. Previously you could rely on the strength of the copyright law, knowing the photographer and you together could go after an infringement and collect damages.

As a model who participated in a photo shoot for one of these images, what recourse would you have if the image was used in a way you didn't approve of, eg. sensitive subjects?

Most ominously, as an entrepreneur who sees these likely "orphanable" images as a potentially lucrative revenue source, how do you......!!!...No, Stop that thought!!!

Take the "reasonably diligent search" challenge!

See if you find the legal copyright holder for any of these images!! Remember, these are some of the most highly visible images on the web. Most images will be considerably more difficult to find.

Here's the selection of images:

All images © the individual copyright holders. In accordance with Title 17 U.S.C. Section 107, these images are displayed without profit for research and educational purposes, and to encourage efforts to preserve the value of and market for these and other copyrighted materials.

Hearing on Orphan Works proposal

2006-03-04T08:37:00.000-08:00

There will be a hearing on the orphan works propal by the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property, at 2pm on March 8, 2006 in Washington DC.

Leif Skoogfors, SAA Board and Legal chair, will attend for SAA.

The hearing will be webcast live starting at 2pm EST

Witnesses will be:
Jule Sigall, Associate Register for Policy and International Affairs, Copyright Office of the United States, The Library of Congress
Allan Adler, Vice President for Legal and Government Affairs, Association of American Publishers, Inc. (AAP)
David Trust, Chief Executive Officer, Professional Photographers of America, Inc.
Maria A. Pallante-Hyun, Associate General Counsel, Guggenheim Museum

The subcommittee chairman is Representative Lamar S. Smith, (R) Texas and members are listed here.

An Urgent Call for Action

2006-03-03T11:09:00.000-08:00

There is an alarming change in US Copyright Law now being “fast tracked“ through Congress with a good chance of passage before the end of the current session of Congress. As currently written, “Orphan Works” legislation would pose a serious threat to stock photographers by removing protections from unauthorized use of our images.

What are "Orphan Works" ?

When the copyright holder of a work cannot be located, it's commonly referred to as an "orphan work." The US Copyright Office has proposed "Orphan Works" legislation that could essentially gut the copyright protection now guaranteed to photographers. As currently written, the proposal offers a huge loophole that severely limits the copyright protection of images that can be classified as “orphan works.”

All users would need do is make a “good faith, reasonably diligent search” to try to find the copyright owner of an image before they call it an “orphan” and use it anyway. If the copyright owner discovers the use, all they would be entitled to is “reasonable compensation” with no allowance for attorney’s fees or means to collect. If the usage has no “direct or indirect commercial advantage,” then the photographer would get nothing.

While “Orphan Works” legislation is aimed at making archival works assessable to museums and libraries, it makes no distinction between these non-profit users and commercial users, nor between historical works and contemporary online imagery. This can only result in a huge potential for MORE infringement of stock images and LESS recourse for stock photographers.

What is SAA doing about it?

SAA has joined a coalition of industry groups to respond to the Copyright Office proposal. Initiated by the American Society of Media Photographers (ASMP), the Coalition also includes the Advertising Photographers of America (APA), Editorial Photographers (EP), Picture Archive Council of America (PACA) Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), and the Illustrators Partnership of America (IPA, which carries with it approximately 40 other organizations).

In the UK, the Association of Photographers (AOP) and the British Association of Picture Libraries and Agencies (BAPLA) have joined the coalition. Although their political clout is necessarily indirect in this matter, their economic interests are definitely at stake. Not only would an Orphan Works law change the nature of the US market, but also it could set up pressure for similar laws in other countries.

SAA is actively working with the Coalition members and dedicated to assisting in any way we can. As a start, we are posting information and sending out letters to increase awareness across the industry, communicating with decision makers and other interested parties, attending upcoming Congressional hearings, and providing comments and feedback during the evaluation and drafting process.

What can YOU do to help?

Take the time to understand the severity of this issue. There is excellent commentary posted by members of the Coalition that explains the specifics of this proposal and other resources.

Read the ASMP Commentary
Read the IPA Commentary
PDN Report
Copyright Office “Orphan Works” Page

Speak up about it. In the past week alone, many photographers have already responded by writing to their home legislators and the members of the House and Senate Judiciary Committee who will be voting on this bill. More active participation will be needed from you as “Orphan Works” moves forward in coming weeks and months so stay tuned.

Proposed Statutory Language

2006-02-24T11:31:00.000-08:00

C. Recommended Statutory Language

SECTION 514: LIMITATIONS ON REMEDIES: ORPHAN WORKS

(a) Notwithstanding sections 502 through 505, where the infringer:

(1) prior to the commencement of the infringement, performed a good faith, reasonably diligent search to locate the owner of the infringed copyright and the infringer did not locate that owner, and
(2) throughout the course of the infringement, provided attribution to the author and copyright owner of the work, if possible and as appropriate under the circumstances, the remedies for the infringement shall be limited as set forth in subsection (b).

(b) LIMITATIONS ON REMEDIES

(1) MONETARY RELIEF
(A) no award for monetary damages (including actual damages, statutory damages, costs or attorney’s fees) shall be made other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work; provided, however, that where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.

(2) INJUNCTIVE RELIEF
(A) in the case where the infringer has prepared or commenced preparation of a derivative work that recasts, transforms or adapts the infringed work with a significant amount of the infringer’s expression, any injunctive or equitable relief granted by the court shall not restrain the infringer’s continued preparation and use of the derivative work, provided that the infringer makes payment of reasonable compensation to the copyright owner for such preparation and ongoing use and provides attribution to the author and copyright owner in a manner determined by the court as reasonable under the circumstances; and
(B) in all other cases, the court may impose injunctive relief to prevent or restrain the infringement in its entirety, but the relief shall to the extent practicable account for any harm that the relief would cause the infringer due to the infringer’s reliance on this section in making the infringing use.

(c) Nothing in this section shall affect rights, limitations or defenses to copyright infringement, including fair use, under this title.

(d) This section shall not apply to any infringement occurring after the date that is ten years from date of enactment of this Act.