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The Orphan Works Bills

A threat to designers everywhere..

by Joanne Fink (May 5, 2008)

(Note: The following is a report on newly introduced legislation in Congress that can have serious ramifications for designers, publishers, and others in every creative industry. Designer Joanne Fink wrote the following in an email which CLN received Apr. 29. CLN will keep you updated on the status of the bills.)

Just thought I’d chime in on the Orphan Works situation. As you probably know, last Friday both the Senate and House introduced variations of the same bill: The Shawn Bentley Orphan Acts of 2008 (S. 2913) and The Orphan Works Act of 2008 (H.R. 5889). If these bills pass, they will have devastating consequences for visual artists.

Having been involved in strategy sessions for the last few days with Brad Holland (Illustrator’s Partnership) and others, let me outline what you can do that would be helpful.

1. Write a letter to your congressional House leader and Senators stating your opposition to the bills. Send the letter both by e-mail and fax.

2. Help raise awareness about the potential consequences of this legislation, and ask everyone you know to write and send letters.

A number of groups which oppose this legislation are collaborating on creating a website which will enable you to e-mail your congressional leaders with the push of button. It will also contain sample letters. I will post the link as soon as the site is live.

The main reasons to object to this legislation are listed below. In case any of you want to start work on your letters before the sample letters are published, I’ve also included additional information to help you explain and clarify these objections.

Under current law, you receive basic copyright protection even if you don’t register your work. Under Orphan Works law your work could be declared an orphan even if you have registered it. Congress, in enacting the Copyright Act of 1976, provided that copyright exists in the creation of any work that is copyrightable subject matter, regardless of whether or not the owner has performed any legal formalities, such as registration, or copyright notices, or taken any steps to protect or defend the copyright. Since 1978 (when it was enacted) many creators have relied upon the Copyright Act of 1976, and employed business practices based upon the protections it offered. The proposed Orphan Works Act of 2008 would have the effect of depriving certain creators of the ability to enforce their copyrights because they did not take steps that the Copyright Act of 1976 did not require them to take. In essence, it will give infringers the legal means to use a design without the copyright holder’s permission.

The proposed legislation is predicated on the establishment of private, profit making registries that would establish databases of digital versions of artworks and provide a place for infringers to try to locate the artist, BUT it will be enacted whether or not these data bases ever come into existence. This will relieve the infringer of liability if he simply attempts a search that cannot possibly be performed successfully.

In addition, the legislation places no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would presumably fall entirely on the artist, and even if an image is contained in the registry, as long as the infringer "looks" without finding it, the infringement is allowed. There is no liability imposed for the failure of a database to find an image registered in that database when it is searched, and no requirement that all available databases be searched, thus potentially requiring multiple registrations (and multiple registration fees). Also there are no safeguards to prevent any person or company from fraudulently registering work they do not own.

Current law almost certainly deters rampant infringement because the present remedies – damages of up to $150,000 per infringing article – make infringement risky. By "limiting remedies," the Orphan Works amendment will effectively create a no-fault license to infringe.

Under current law, the right to create a derivative work is one of an artist’s exclusive rights. Section103(a) says a user can’t copyright a derivative image that he’s infringed. "Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." Under the proposed new bills, since the entirety of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original. This would be a de facto capture of new exclusive rights by the infringer. In other words, these bills allow infringers to make and copyright derivatives – even if the copyright holder to the original work objects.

If this legislation passes it would mean a return to pre-1976 U.S. Copyright Act when many artists' works fell into the public domain because they could not afford to comply with the formalities of registration as a condition of copyright protection. This violates the trust under which American artists have worked for the last 30 years, and nullifies our U.S. Copyright registrations. Further, it is against the Berne Convention, and invites retaliation from around the world because international artists' works are just as vulnerable to infringement under the U.S. Orphan Works Act.

Now let me recap the current situation:

The Senate has only given a few days for comments on the bill to be made; they are due Wednesday, April 30th. The House has not specified a time-frame, and may give as little as 24 hours notice before closing the window for comments. There are several loosely allied groups which are opposing the legislation. These include The Illustrator’s Partnership (illustrators), The Artists’ Rights Society (fine artists), The Advertising Photographers of America (photographers), the Artists Foundation (fine artists), the Textile coalition (4 textile groups) and the Industry Coalition (whose members include the Craft and Hobby Association and George Little Management). During an OW strategy session Friday afternoon, Corrine Kevorkian, counsel for textile giant F. Shumacher, shared that the Textile coalition intends to recommend to the Senate that they adopt the House version. If this happens, the Textile industry will be spared the draconian impact of the Orphan Works Act because the House version exempts useful articles (see #1 below). She also intends to emphasize that the legislation shouldn’t take effect until the electronic data bases actually exist.

Although the bills are similar, there are some important differences to note. Both are devastating to all visual artists, but the House bill is somewhat less objectionable. Here are the three main differences:

1. The House bill includes an exception for useful articles, which (as far as I can determine) means that products (such as textiles and mugs) which are functional whether or not design has been applied to them, will not be impacted by this legislation.

2. The House bill also requires that manufacturers file their intention to use an image before they can use it --although it does not (a) specify a time period or method for doing so, (b) does not require an image to be included, only a verbal description (the Mona Lisa, for example could be described as "a dark-haired woman with an unusual expression" which would supposedly allow Leonardo to identify his work), and (c) does not require the filings to be readily searchable to allow an artist to monitor unauthorized uses of his/her work.

3. The House bill allows for a longer (possible) time period before implementation: January 1, 2013 vs. the Senate bill which uses the date of January 1, 2011. Unfortunately both bills are scheduled to take effect on the earlier of: "the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic and sculptural works, and are available to the public through the Internet; or the January 1st, 2011 or 2013 listed by the respective bills. This means that if there is no visually searchable database operable before the date(s) listed, the legislation goes into effect anyway!

If you would like additional information on the potential impact of this legislation, you can learn more by

a. Reviewing the submission to the House by the Illustrator’s Partnership www.illustratorspartnership.org/01_topics/article.php?searchterm=00261

b. Listening to Brad Holland’s informative webcast: www.sellyourtvconceptnow.com/orphan.html.

This is a very serious situation, and will require a concerted effort on all of our parts to stop it. I’m glad to see so much posting going on… and I believe that together we CAN make a difference. I’ll be in touch as soon as I have more information.

This may be forwarded in its entirety to any interested parties.

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