Orphan Works Act

I remember back in the “old days” when we artists began putting our art online. There were campaigns to give credit where credit was due because of thieves using our hard work to gain recognition or money they did not deserve. We learned how to watermark our images and upload them in low resolution so it was more difficult for thieves to reproduce appropriated work.

We became lay-experts on Copyright Law and learned what images were considered in the public domain and could legally and ethically be used in creating website graphics or new collage works. We depended on the idea that copyright belonged to us and would protect our completed work regardless of whether or not we actually spent the money and time in bureaucratic hoop-jumping to register our work with the copyright office.

Of course, registering our work with the copyright office did not keep infringers and thieves from appropriating works they found on the Internet (or anywhere)but it did give us better legal footing in the chance we had the money to hire attorneys to file lawsuits.

Prior to the introduction of this bill, we commonly considered “Orphan Work” works of art or writing that were largely unsigned and/or left at a gallery or with an art organization, never collected after an exhibition, show or other similar event. With the arts non-profit I worked with, there was a whole collection of orphaned work. Some of it was signed and some of it was not. Often the creators of the works could not be located, did not inquire or retrieve it and so it became a part of the Orphan Works Collection. We all agreed selling it was not an option because we had not been given the permission to do so but we did exhibit the work.

It’s a commonly known fact that nothing is worth anything until somebody wants it. Those of us who write or make art for a living–outside of commissioned work–find that this is the basis on which we do business. We create the stuff, determine a price for it and put it out there. Sometimes we may negotiate that initial price but the botton line is that when somebody decides, for whatever reason, they want what we created, then the amount they are willing to pay is exactly the value at that
time. If we choose to revise, resell, reproduce or replicate, that’s our business too. We can do what we like with the image because we still own the copyright.

The act of putting a little c with a circle around it became redundant in the U.S. in 1978. In current copyright law, every drawing, painting, photograph, poem or play (any work “fixed in tangible form for the first time”)is simply owned by you the artist for the length of your life, PLUS 70 years. If somebody snarfs it, or uses it without your permission, you have the law on your side to chase them down and get paid. Currently, it is considerably easier to do this if you have registered the work with the copyright office.

That’s why  H.R. 5889, The Orphan Works Act of 2008, introduced on April 24, 2008 is particularly troubling. Introduced by House Judiciary Committee Intellectual Property Subcommittee Chairman Berman of California, full Judiciary Committee Ranking Member Lamar Smith of Texas, and Intellectual Property Subcommittee Ranking Member Howard Coble of North Carolina this bill “limits the remedies in a civil
action brought for infringement of copyright in an orphan work” and
“amends Chapter 5 of title 17, United States Code, (Copyright law) by
adding “§ 514. Limitation on remedies in cases involving orphan works.”

In a nutshell, this bill says that you the artist must now officially register every single work you wish to protect in order for the work to be protected and if it is not, it will be considered an “orphan work” and therefore in the public domain. The on-line registries in which to register works haven’t yet been created and once established will no doubt not be free. Plus, even if a work has already been registered with the copyright office, it would still need to be re-registered!

In what can only be politely referred to as a “radical departure from
existing copyright law and business practice”, the U.S. Copyright Office
has asked that Congress grant such infringers freedom to ignore the
rights of the author and use the work for any purpose, including
commercial usage. W
ritten so broadly this proposal goes far beyond current concepts of fair use by exposing new works to infringement, even where the artist is alive, in
business, and licensing the work.

To add insult to injury, commercial stockhouses and archives could actually harvest newly-created “orphans,” then crop or alter them
slightly to make them “derivative works” and register them as their own
“creative” works. Artists would then be forced to compete against
their own lost art – and that of their colleagues, while willful
infringers would have the competitive advantage of merely assimilating
and transforming (aka stealing) the work of others.

Companies like Disney have always felt the necessity to register copyrights and keep a stable of attorneys whose sole purpose is to seek out and prosecute infringers and thieves.  The Orphan Works Act of 2008 continues to protect companies like Disney but leaves freelance and self-employed visual artists swinging in the wind completing another layer of red tape and racking up another expense.

Post-monetization is our life blood. The choice to defend an
extant work should always be in the hands of the creator or his
assigns. That’s why the current law works so well. A few years
ago a car company decently asked me if they might use one of my
(already sold) paintings in the background of a car ad. I named
a reasonable fee and they readily agreed. We used a “one time
only” contract and we didn’t even use a lawyer. If the Orphan
Works Act becomes law, without an author’s prior registration,
Mercedes-Benz could just help themselves. No ask. No pay. Nutz.

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