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George Washington Law School hosted a symposium on June 18 as part of their “Creative Industries in Transition: New Directions for the Digital Era” series. The talk was co-sponsored by BMI and was, therefore, unsurprisingly about the importance of performance rights organizations(PROs), such as BMI and ASCAP, and their place in the digital future. The focal point of the symposium was Berkeley Prof, Robert Merges’ presentation of his upcoming paper, “The Continuing Vitality of Music Performance Rights.” Copyright Office Register, Marybeth Peters, followed with her take on the subject and a panel discussion followed, featuring Merges, Register Peters, Public Knowledge President, Gigi Sohn, Prof and former Register Ralph Oman, and songwriter/publisher Dennis Morgan. Here is a nutshell summary:
Merges: it’s necessary to assert the importance of PROs because a couple of professors don’t like copyright law.
Peters: PROs are important and the bundling of digital rights should be possible as long as we don’t get within 10 miles of compulsory rates.
Gigi: the threat of killing copyright is a bit of a straw man. No one in policy has any problem with PROs. PROs do a good job, but may just have to evolve with the times.
Oman: Uncertain. But he did have a good quote about it being necessary to eat in order to enjoy the glory of creating.
Morgan: I’m a starving artist. Please help me.
The discussion was consistently lively and engaging. However, there was one moment that stood out for showing a fresh way how PROs could have an impact in the digital future. During the question & answer segment, Eugene Mopsik of the American Society of Media Photographers voiced a question about orphan works. In response, Gigi suggested, “How about a PRO for visual artists?” It was a subtle suggestion, but deep enough to cause a discernable, mental “hmmm?” from everyone in the room. Mr. Mopsik eventually responded by recounting some discouraging experiences with the DOJ, but the seed had been planted: PROs could have an impact in the digital future by providing the template for a VRO—a Visual Rights Organization.
So, how about it? Why not build a VRO?
A VRO would be a non-profit organization, very much like the music PROs, such as ASCAP and BMI. It would most logically be formed by a coalition of the parties most interested in getting paid for use of their visual works: photographers, illustrators, etc. The VRO would function in exactly the same way that ASCAP or BMI functions for songwriters: it would collect license fees from uses of visual works and distribute those fees as royalties to those members whose works have been used, whether online, in print, on film, wherever. Just like the music PROs, a VRO could provide blanket licenses or piece-by-piece licenses. Again, just as with the music PROs, assigning works to a VRO would be purely voluntary. In any event, the creators of the visual works could always choose to license their work on their own, regardless of whether they’ve assigned the work to the VRO.
But the greatest service that a VRO could help provide would be a well-organized, accessible registry of the works assigned to them. The music PROs have detailed registries of their members’ songs and that is probably the biggest reason why there is no orphaned works problem with music. The Copyright Office has made it abundantly clear that they have neither the competence nor the will to do it themselves, so who better to design a visual registry than visual designers, themselves? After all, they are skilled in visual design from doing their work and they are the ones that have the most to gain, if things are done well. With a well-designed registry, artists could be easily found by people who want to license their work. Similarly, someone who is simply looking for a certain type of work may stumble upon it in the VRO’s registry and license from the creator in that way.
Any fixed expression is copyrighted, with or without PROs, VROs, or registries. But just as with the music PROs, a VRO would not and could not possibly do everything for an artist. Visual artists would still have to be vigilant in discovering illegal uses of their work, just as they—and musical artists—must be now. And while copyright already grants their work protection under the law, registering with the Copyright Office would still be necessary to sue for maximal statutory damages--just as it is now and just as it is for musicians.
But the important thing to keep in mind is that the VRO’s clients would be the creators, themselves. Therefore, there would be a strong incentive to make the registry as user-friendly as possible for those creators, with perhaps only a minimal, one-time initiation fee, just as ASCAP and BMI charge right now. And since a VRO would be set up for the creators’ benefit, it would also be as user friendly as possible for the people looking to license and PAY FOR visual works. Essentially, a VRO could solve most of the legitimate questions that many visual artists have with orphan works legislation, since it would provide all the services that creators or potential licensees would need and it would be able to do it from the ground up, serving the visual artists, with them in mind, for their benefit. The bottom line is that a VRO would finally make it easy for visual artists to be found and get paid. All together now: just like ASCAP and BMI do for songwriters right now.