Wednesday, July 09, 2008

"Who loses out? The reader, the public, the people you want to spread the history to" (UPDATED)

EFF's Richard Esguerra spots "a clear, real-life example of the orphan works problem" in this recent New York Times article on a local high school history teacher and labor-of-love publisher of books of historical Brooklyn photographs who has been blocked from using certain orphan photographs in his forthcoming book on Canarsie:

"Deborah Schwartz, president of the [Brooklyn] historical society ... said Wednesday that the society was only trying to follow the letter of copyright law. The holders of the copyrights for the pictures — one taken around 1895 and the other in the early 20th century — are unknown, she said, and without permission from them or their estates, the photos cannot be reused for a commercial endeavor. ... 'We would like to accommodate him, but we can’t do that until we’re sure that we have the copyright,' Ms. Schwartz said. 'It’s kind of a drag on some level,' she added. 'On the other hand, it’s a law that’s designed to protect artists, photographers, because it’s their work.'"

Says Esguerra: "So, there's orphan works problem in a nutshell: both creativity and commerce are in suspended animation, with no one -- not the photographer/copyright owner, not the archive, not the publisher -- able to express, document, or profit from the works in question."

UPDATE: Heather Hope comments: "[F]or situations like this - where the photographer is unknown and likely deceased, and there is no way to discover the artist and contact the estate - these photographs have now become absolutely useless due to the current state of copyright law. They can't be used by anyone. How does that serve anyones interests?"