time can you buy for $1,500? Not enough to bring a copyright

suit, I can assure you.

What this means is that our lawyers have to tell our

members:

Yes, you have a clear right given to you by Congress. Yes, that right has clearly been violated and you have been wronged. Unfortunately, there is no meaningful remedy.

You have no idea how strongly that news affects the

typical photographer.

Frankly, he or she feels betrayed by

the legal system and convinced that whoever made the law was

toying with justice.

feel.

That is not a good way for citizens to

Now, I hasten to add that routine infringers are taking a real risk. PPA has funded lawsuits against routine infringers and has obtained substantial recoveries. But the suits have cost us hundreds of thousands of dollars, and only the most flagrant infringers can be sued.

Even in these cases of ongoing, routine infringement, the requirement of advance registration has caused great mischief. To make the cases viable, we base them on copying done in response to investigative orders submitted after warnings have failed.

Although this is a time-honored

technique, in each case we have brought we have had to deal against claims that we "set up" or participated in the

and have rejected motions to dismiss.

However, this issue is

a major distraction, wastes a lot of resources and diffuses the moral thrust of our suits.

The lawyers tell me that some courts have been raising questions about whether the requirement that a copyright owner register a work prior to suit precludes the granting of meaningful injunctive relief with respect to unregistered works and future works. While I do not fully know the state of the law on this issue, I will say that it is essential that injunctions granted against systematic infringers cover all works of the infringed photographer. By the time an action has been brought with respect to one photograph, it is not likely that the particular photograph will again be infringed.

It is the future work of that photographer that is most vulnerable. Any provision of the law that raises doubt about a court's ability to grant meaningful injunctive relief against such copying severely hurts photographers.

In PPA's view, a meaningful right must be protected by a meaningful remedy. Our experience has been that the requirement of prior registration, as a condition for obtaining statutory damages and attorney's fees, has deprived most photographers of meaningful copyright protection. We are concerned that the requirement of registration prior to litigation has caused courts to question their ability to

grant meaningful injunctive relief.

For those reasons, we

support the repeal of those requirements.

One final note. I understand that there are other provisions of the Copyright Reform Act of 1993 that are not related to the question of copyright registration.

PPA is

not affected by those provisions and takes no position on them. However, we believe, whatever the fate of those provisions, that section 102 of the bill is good law, and should be enacted.

Thank you.

Mr. HUGHES. Mr. Mills, welcome.

STATEMENT OF OLAN MILLS II, CHAIRMAN OF THE BOARD, OLAN MILLS CORP.

Mr. MILLS. My name is Olan Mills II. I am chairman of the Olan Mills Studios, a company founded in the Depression by my mother and father. We are in the family photography business and now have in excess of 900 studios throughout the United States.

I am honored to appear here today to testify in support of the proposal in H.R. 897 to remove the advanced registration and deposit burdens from the Copyright Act. I am speaking as a businessman, and I would like to tell you about the practical problems that I see in our business brought on by those provisions.

Our industry is a very competitive one. There are thousands of photographers all over the country, and we all face the same problem, and that is to get the customer in front of the camera, the acquisition problem. My father and mother worked on that problem by going door to door when they started the business. They would offer the customer a portrait at a special price and then hope that, if they did a good enough job, they would be able to sell additional portraits at the regular price when the customer saw them.

We do essentially that today, although we are not going door to door any longer. We have a club plan where the customer receives three sittings in about a year's time and each time receives an 8by-10-inch portrait, and that is sold to the customer for about $15, well below our actual costs. We recoup our cost by selling additional portraits to that customer if he or she desires them. We recover not only that cost but also the money we spent to attract our customer, pay for our studio, our personnel, our plant production, and general administrative costs. We profit only through the sale of the additional portraits. This system puts the customer really in the driver's seat. If we do a good job, they buy; if we don't, they buy less or perhaps nothing at all.

It is important to understand that the market for these portraits is quite limited. They can only be sold to the subject customer. It is of them or their family. It is not really available to be sold on the open market. If an infringer comes on to the scene and copies our work, then our entire market can be destroyed.

Technology has advanced to the point that good copies are now being offered at convenient places such as drug stores and photo shops without the need of our negatives. The infringer avoids all the difficult parts of the business-that is, attracting the customer into the studio and producing an attractive and high-quality portrait.

Such copying is hard to detect, and we cannot quantify its impact with precision, but as a business we have made the hard judgment to spend hundreds of thousands of dollars in legal fees and hundreds of hours of time fighting just the most flagrant infringers.

Mr. HUGHES. Mr. Mills, let me just interrupt you right there. I am going to have to recess for a little bit so I can go catch that vote I have got about 6 minutes-and then we will come back and take the balance of your testimony. I apologize for that.

The subcommittee stands recessed. [Recess.]

70-857 - 93 - 13

Mr. HUGHES. The subcommittee will come to order.

Mr. Mills, I am sorry for the interruption. You may proceed.

Mr. MILLS. Mr. Chairman, simply stated, advanced registration would be an enormous burden to us. We do not know which photographs will be infringed, so we would need to register each and every photograph.

As I said before, we have about 900 studies; and, Mr. Chairman, there was a miscommunication when I sent my information up to you; it said 100,000 photographs per week; it is actually 100,000 sittings, which would be maybe seven photographs apiece; so the number of photographs we take is actually about 700,000 per week, not 100,000.

If we were to register each day's production at the studio with the depository, it could amount to 27,000 registrations per month; that is, taking each day's photography for each studio. We can only imagine the amount of paperwork involved and the burden put upon us and the Library to handle all of that, and it seems to me that it serves little purpose.

The Library of Congress has expressed a concern that repeal of 411(a) and 412 would deprive it of its ability to obtain materials for its collections. I don't quite understand that concern. Several years ago, our attorney called the Copyright Office to ask whether we should deposit copies of our output. We were advised at the time quite clearly that hundreds of thousands of Olan Mills photographs were not wanted, and the message was essentially, "Don't call us, we'll call you."

Olan Mills, of course, like all photographers, would be more than happy to provide anything that the Library of Congress would require or ask us, but we do think that, looking at the total scope of our business, the current requirement of advance registration would create a large paperwork mess for us if we were to attempt it.

The Copyright Office had said here today in earlier testimony that our real problem is, who owns the rights to the photographs, and I think that is not right. As Ms. Schrader pointed out, the law was clearly changed in 1978 to make clear that the photographer owns that right. The change was made by Congress recognizing some special problems of the photographer.

There is a problem of public perception, but that perception is fueled by infringers who offer to copy our portraits for very low prices that do not reflect the cost of creation. This is a tough incentive for our customers to pass up. Our real problem is registration. Where we find a habitual infringer, we now under current law need to use an investigator to pose as a normal customer to present a registered photo for copying. One court has now told us we can't do that. The court said the investigator authorized the copy. Without the advanced registration requirement, we could act when we learn about these types of infringements.

My message to you today is that advanced registration and deposit requirements pose huge practical problems for our business and, I gather, for other similar businesses. Unless we can demonstrate equally compelling benefits-and that is for you to judgewe support repeal of sections 411(a) and 412.

Thank you.