Orphan Works Legislation … a Potential Nightmare for Visual Artists
I mentioned in my prior post about our meeting with Joanne Fink, President of Lakeside Designs (which specializes, in part in greeting cards.) As she was showing us her work, she told us about the possible passing of the Orphan Works legislation and how it effects the current copyring law. From “Copyright and Art Issues,” compiled by Christine L. Sundt on June 21, 2006,
“Orphan works are works (images/photos, letters, books, works of art, and others) that are still formally protected by copyright, but where a potential user—scholar, teacher, artist, publisher or other person or institution—is unable to clear rights because a) there is no copyright information associated with the work; b) the information is inadequate or inaccurate; or c) attempts to contact possible rights holders have proved futile (no one at last known address; publisher out of business, no responses to letters, etc.).
Joanne explained that many thought (me included) that the proposal, which was introduced a few years ago, was so left field that it would never pass. But with the support of entities such as the Motion Picture Association of America, the Recording Industry and the Association of America Publishers, suddenly the passage is being fast-tracked in Washington and passage doesn’t seem so far fetched after all. Since motion pictures owners and and the like all clearly state their copyright, it’s not a problem for them. For visual artists such as textile artists, photographers, illustrators, graphic artists and the like, however, this legislation can potentially be a nightmare!
If that language is enacted in its current form, the gist of the problem is that any infringement of a copyrighted work will be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner. A reasonable diligent effort to find the copyright holder is very open-ended. If, for example, someone takes the front of a card Joanne designed, separating it from the back of the card showing her copyright information, and passes it onto someone else, that person has no easy way of knowing who designed the original card. Under the that scenario, the work can be incorporated into a new work.
Here’s another example: Think of all of those people snapping photos while at quilt shows. If those pictures are then used by someone else to create a new work, and if the person creating the new has no way of knowing who created the quilt in the photo, then that person could potentially create a new work based on the image.
If such legislation passes, the fear of a substantial monetary judgment, such as what one could face if the registered copyright holder claimed infringement and won, is nearly gone. And, if the owner later learns of the use and objects to it, the offending person would only have to pay “reasonable compensation,” not actual or statutory damages. Joanne also tells me that if the use is stopped, in some instances the user may be liable for no damages at all!
This issue also came up later at Photoshop World, with photographers such as Stephen Johnson, saying “fight it whenever you can.” The American Society of Media Photographers, Inc. on its page called “Copyright – Orphan Works
Urgent Call for Your Action on Orphan Works” states, “We have been monitoring this proposal for the past year and, suddenly, it has moved onto Congress’ front burner. As it stands, it will be a disaster for photographers.” And, obviously, textiles artists. While from 2003, the site contains a draft letter for completion by you and to send to your senator or representative.
You can follow their updates on their Status of the Orphan Works bill page.
Some older articles include:
The Orphan Bill Rears its Ugly Head Again, by the “Photo Attorney” on Saturday, March 22, 2008. NPPA Objects To “Orphan Works” Copyright Proposals; Calls For Letter Campaign, by the National Press Photographers Association, February 2006. Orphan Works Bill Still Pending In Congress, Photo District News, April 19, 2006. License to Steal: Will the Orpahn Bill Let Anyone Pirate Your Images? by Nikon Digital, March 9, 2006
On March 19, 2008, There is an Orphan Works Update
by The Board of the Illustrators’ Partnership The site notes: “Many artists have contacted us, asking if it’s time to write Congress about the new Orphan Works bill. No, Congress hasn’t released an actual bill yet and lawmakers tend to ignore letters when there is no bill. But when we do ask you to act, it will have to be quickly. We expect a bill to be released after the Easter recess. Sources say it will be introduced in the House and Senate simultaneously, and fast-tracked for a vote in the House by mid-May. Advocates hope for swift passage before the summer recess. … Of course, we can’t judge a new bill until we’ve seen it, but it appears that the new one will closely resemble the old one. So while we don’t recommend sending letters yet, it’s not too soon to start drafting them. Over the next few weeks, we’ll tell you more about the changed Orphan Works landscape. Then stand by.”
We are currently creating a new website for the Greeting Card Association. On the new site, information about this issue will also be included. Once I have that information, I’ll pass it on with appropriate links. In the meantime, I’ll be following some of the sites mentioned above.
Also, to find out who your senators and house representatives are, visit Congress.org.
April 7th, 2008 at 9:50 am
I believe the intent of the proposed legislation is very much in keeping with the original intent of copyright laws–the protection and promotion of the public domain. Copyright laws were introduced in order to give copyright holders *limited* protection. This protection was granted in order to encourage them to publicize their works so that all people regardless of class or economic means have an opportunity to benefit from the intellectual and esthetic excellence produced by our cultures. Orphan works legislation won’t allow, and isn’t intended to allow, wholesale pilfering of copyrighted material. Using a copyrighted image illegally would not be excused just because someone ignored, or removed, identifying information from a greeting card and claimed they couldn’t find the information. To suggest that this scenario is covered by Orphan Works legislation is just fear-mongering, in my opinion.
April 7th, 2008 at 12:45 pm
You say, “Using a copyrighted image illegally would not be excused just because someone ignored, or removed, identifying information from a greeting card and claimed they couldn’t find the information.” Right, but if someone did, and the copyright holder later wrote and said not to use it, the offending party can continue to use it with very little penalty, and sometimes none at all. In other words, the monetary incentive not to use copyrighted material would nearly be gone under the proposed new legislation. This is a topic that I will be watching with interest.