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This information comes from Joanne Fink, of Lakeside Design in Lake Mary, Florida. She gives permission for it to be forwarded in its entirely to any interested parties.

“I wanted to give you an update 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.

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April 24, 2008 — Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation

H.R. 5889, the Orphan Works Act of 2008, was 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 on April 24, 2008.
Here is the link to a PDF of H.R. 5889

S. 2913, the Orphan Works Act of 2008, was introduced on April 24, 2008 by current Senate Judiciary Committee Chairman Patrick Leahy of Vermont and former Senate Judiciary Committee Chairman Orrin Hatch. The language and approach of S. 2913 is based upon the 2006 language.
Here is a link to a PDF of S.2913

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On March 31st I wrote “Orphan Works Legislation … a Potential Nightmare for Visual Artists.”

To update, on April 10th, Mark Simon wrote, “Mind Your Business: You Will Lose All The Rights to Your Own Art.,” which includes steps you can take to get involved. He also adds, “To be notified of the latest information on the Orphan Works bill and when to contact your legislators, send an e-mail and ask to be added to the Orphan Works list.”

Several people reacted strongly to his article, saying it is VERY overblown.

The Stock Artists Alliance has a blog with “up-to-date commentary on “Orphan Works” changes to US Copyright Law now under consideration by the US Congress.” Their blog is here. On March 30, 2008, they in part posted:

“Six months after the last version of an Orphan Works bill died in a Congressional committee, a new Orphan Works bill is being drafted for consideration in the 2008 legislative session.”

You can also read, “Statement of Marybeth Peters, The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary,” dated March 13, 2008 here.

There is an informative interview of Brad Holland of the Illustrator’s Partnership here.
It was done on April 5, 2008 by Mark Simon, who is an award-winning animation producer/director.
On the site are various comments, support and rebuttals.

Some include:

Q: There is no Orphan Works bill before Congress – one was introduced in 2006 but it was never voted on.
A : The bill is due out momentarily and will be fast-tracked for passage by summer. Because Congress wants to rush it through, we want to alert artists now.

Q: But if there isn’t a bill yet, how can we know what’s going to be in it?
A: Our information indicates that it will be basically the same as the one they introduced in 2006.

Q: Where is our information coming from?
A: From meetings with:

* Attorneys from the Copyright Office,
* Rep. Howard Berman, Chair of the House intellectual property subcommittee,
* Legislative assistants to the Chair and Ranking Member of the Senate intellectual property subcommittee,
* Legislative assistant to Rep, Lamar Smith, who initiated the bill and
* The lobbyist for Getty and Corbis.

Food for thought.

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.