There is a pending bill, House Resolution H.R. 4279, that contains language that could seriously impact, if not cripple, virtually every photofinisher in America, be it the corner one-hour minilab or the largest internet photofinisher. The verbiage is in Section 104, regarding compilation of damages.
The last time that I was involved in copyright reform was in 1993. At that time, I noticed a small blurb in PMA's Newsline about a pending bill that would allow a fine of up to $20,000 per image that was infringed, whether marked or not.
I immediately thought of a page of 20 35mm slides that I'd just seen dropped off at my counter for 8x12 prints to be made. I called my intellectual property attorney and told him about the scenario. I asked, "If this proposed bill goes through as written and those 20 unmarked slides that we just took in were, in fact, taken by a professional, and the person presenting them at my counter was not the photographer, would I be liable?" He said that as written, the judge would have to award, per the statute, up to $20,000-plus in attorneys' fees per slide!
I then called my insurance carrier and learned that insurance carriers do not cover statutory issues. Realizing that one plastic page containing 20 slides could cost me at least a half million dollars with both side's attorney's fees, I realized that I must draw national attention to this issue.
GETTING THE WORD OUT
PMA arranged a series of meetings in Washington and invited interested parties. In attendance were folks from Kodak, Fuji, Ritz Camera, chain photofinishers, and independent photofinishers. It was clear that to move toward the center and hopefully bring parity and balance to this crucial legislation, we must organize to tell our side of the story to our nation's lawmakers.
At that time, the government had printed a 600-plus-page book that contained the testimony of virtually every photographer's group in the nation. The Professional Photographers of America and its members had offered extensive testimony to our lawmakers, as well as ASMP and other photographers' groups.
In this massive collection of exhibits and testimony, not one word was heard from photofinishers about the realities of the marketplace. I remember the last meeting well. The room was packed with delegates from our side of the issue. A motion was made to form an ad hoc committee; some guy raised his hand and said he thought Jack (meaning me) should do it. A bunch of hands followed, and there I was, a big responsibility dropped in my lap. I knew nothing of lobbying or how to go about contacting our lawmakers.
The coalition began asking for donations to fight the battle ahead. We hired a Washington lawyer who had come out of government service; the coalition was literally his first client. We couldn't have found a better choice, as he came from an active picture-taking family and had grown up with a home darkroom.
He soon began to understand the dilemma that faces camera stores, one-hour labs, and photofinishers of all types. One of the biggest problems for consumers of wedding pictures or studio portraiture is that when they pay the photographer, they believe that they own the pictures and not just a single 8x10. If the pictures were marked with the photographer's logo or copyright notice, we were the bearers of bad news. Customers got angry with us for turning them down to make copies on a regular basis.
Some customers, after being turned down at one outlet, would simply remove the copyright marks and go to another store. I was at the counter when a customer came in with 35mm slides marked: "Copyright John Smith." I turned her down; she walked across the store, purchased a package of 20 slide mounts, and left the store. The next lab that she visited would have no way of knowing that those slides were copyrighted works. This became the story that I told each congressman and staff person I visited.
This was clearly what we called "innocent infringement," and we should not be held accountable for acts of infringement that we cannot control. Ultimately, after a long battle, we did get enough lawmakers to realize that statutory damages for actions where we had no control was not the answer, and the bill was defeated.
Our coalition worked with PMA to bring all parties together to write the Copyright Guidelines. In those guidelines, it was agreed that photographers' rights should be respected. It was also agreed that labs and stores should have signage in place informing consumers that said lab respects photographers' works, so please don't ask us to reproduce professional works.
It was agreed that labs would put training programs in place so that employees could better recognize professional works and take the necessary steps to alert management if they were asked to infringe on a photographer's copyright. It was also agreed by all parties at the table that any future attempts at copyright reform would include all parties working together to achieve balance.
Sadly, that has, in my opinion, not been the case. Photographers' groups have continued to lobby the U.S. Copyright Office and our lawmakers behind the scenes.