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Saturday, June 20, 2009

Quick Note on Current Orphan Works Disinformation

I am being mildly bombarded with questions and mostly links to articles on other photographers' blogs about this one bit of disinformation about the Orphan Works Act, so I thought I would write a very short blog entry to set the record straight.

The disinformation being passed around everywhere is this:
"Someone can now steal your photo and claim it's an orphan work, and you have to spend $50,000 filing a lawsuit just to prove them wrong. No photographer can do that!"

Folks, this is a senseless argument because someone could steal an image and claim anything, not just that it's an orphan work. They can claim they shot it themselves, or that they're using the work under Fair Use provisions, or that it's got a Creative Commons License. Any of these arguments could be entirely baseless and untrue. If the argument is that the photographer would have to spend $50,000 to go to court, and he can't or won't do that, what makes the OWA any different than any of these other threats?

The reality is that the photographer does not have to spend money to go to court or even "hire" a lawyer. All the photographer has to do is engage with a lawyer on a contingency basis (where he is paid only if money is collected), write a letter to the infringer that says that says that their use of the image is a copyright violation, that the statutory damages for such a violation ranges from $750 to $30,000, but an amicable settlement can be reached.

At this point, the infringer has a decision to make, is he going to spend $50,000 going to court to defend his claim that he's protected by the Orphan Works Act? Or is he just going to pay the photographer a couple thousand bucks just to make the problem go away? Remember, the infringer's lawyer costs $500/hr, so he already has to spend that much just the show him the letter you wrote and draft a reply. The lawyer is also going to advise his client that, in copyright infringement claims, the onus is on the defense to prove their case, not the other way around. What's more, if the photographer wins, he gets his legal fees reimbursed. But if the infringer wins, he does not get his legal fees reimbursed. Even if the OWA really did provide a mechanism for infringement -- which is does not -- the defense still has the burden of proof, and has to spend the money to do so, and he does not get that money back. In short, infringing bears nothing but risk.

You can argue up and down the merits or details of the OWA till you're blue in the face, but the pragmatic reality is that the infringer will pay the photographer a settlement, even if he thinks he's right.

And that's why a lawyer will be willing to take your case on contingency. You don't have to spend a dime to protect your works.

And you never did.

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