ICON5- Address on Orphan Works
Here's the text version of the talk I gave at ICON5 concerning the Orphan Works Act. I have modified it slightly to make it readable and to make it more accurate to the facts. I hope it is helpful in giving a concise overview of the issues involved. This was delivered at the Industry Update session on July 4, 2008:
I
would like to acknowledge that much of the information I’m presenting to you
today has been gleaned from a number of sources, including the websites of the,
The Illustrators' Partnership
of America, OPENCongress, The Graphic
Artists Guild, The New York Times, GovTrack.us and from a video interview with
Nancy Wolfe, Intellectual Property Lawyer. Let
me start this part of our update by asking you to indulge me in summing up the
bill through the use of a parable.
As many of you know, parables have always been used to illustrate truths
through a simple story. (I always hoped I could put my time in the Seminary to
good use) This was posted on the OPENCongress website in response the Orphan
Works Act on May 20th.
The writer is Anonymous. This basically sums up the bill -
Thief: "Wow - that's a nice car, I wonder who owns it?
Hmm..."
Thief: "Wow - I looked all over and I couldn't find the
owner. I'm going to take it for a drive. "
Owner calls the cops and the cops find the thief -
Cops: "You are under arrest unless you can prove that you
searched for the owner of the car before you took it for a joy ride."
Thief: "My friend is back at the restaurant we were eating
at and he can verify that I looked all over the block and knocked on the doors
of several homes before taking the car."
Cops: "Well, that's good then. Please take the car to the
wash and fill it up for the owner and return it. Then please pay the owner
$100.00 for the use of the car for the day."
Thief: "Sure thing officer."
Owner of the car: "WTF?" Let
me start by making it clear that I have a point of view. In 1983 our illustration studio, W/C
Studio Inc, began producing illustrations, which now number in the thousands
claiming the promise that the U.S. Copyright Law insured that these works were
the exclusive property of the creator, and were protected by unauthorized
usage. I’m not confident that this
will continue. As you know, there is legislation in both the House and Senate;
the two bills are S.2913, the Shawn Bentley Orphan Works Act of 2008 and
H.R.5889, the Orphan Works Act
of 2008. The current
status of these bills is different for each one. The Senate bill has cleared
the committees and is waiting to be considered by the Senate as a whole. The House Bill is still in committee.
It is still subject to mark up. Although they either have been or will be
placed on the calendar of business for passage, the majority party leadership
determines the order in which bills are considered and voted on. It is an
election year and between now and November what legislation passes is anyone’s
guess. But many experts more
learned than I are sure that at some point, an Orphan Works law will be passed.
Keep in mind that sometimes the text of one bill is incorporated into another
bill, and in those cases the original bill might seem to be abandoned.
Moreover, it’s important to recognize that if 2 similar bills are passed, they
will go back to committee to have their wording made the same. There are some differences in each
version of the bill. The Senate
bill would go into effect earlier that the House bill, The limitation or
elimination of remedies for infringing uses are different, and the Senate bill
does not require the infringer to file notice of use in a Copyright Office
Database. Effective Dates of 2009, 2011 for the bill if passed are the best
current guess as to when they could take effect. If enacted many believe that this legislation will effectively
undermine your existing copyright protection. So let’s start with why was this legislation introduced in the
first place? The
innocent answer to that question is that the lobbies for the Associations of
Museums in America, The American Library Association, Archivists, Educational
& Text Book Groups want a more streamlined and open path to be able to
digitize, archive and otherwise use orphaned Intellectual property. What
is an “orphaned Work”? The act defines an “orphan work” as any work where the author is
unidentifiable or un-locatable, and applies to domestic, foreign, published and
unpublished works regardless of their age. It is original work; it could even have been
registered with the US Copyright office.
Technically, it’s still protected by the Copyright Act of 1976. It’s work not yet in the public domain. It
also could be works in which the rights holder is a corporation or company who
is now out of business. Or perhaps the copyright holder is dead and heirs
cannot be located. Or, and this is
very important, it is work where the creator or copyright holder is
unidentified. In other words, there is no name credit in print, no name on the
image, etc. Do any of you have any
work out there without a copyright notice attached or without your name on the
image? This applies to illustrations, graphics, fine art, surface design,
photographs, maps, software, sculpture, film, music and even written works. There
are indeed works of art, films, books, and other materials in museums and
libraries for which no copyright owner can be found. The current system is
prohibitive in allowing unauthorized use of this material. This, some say, is
an issue that in our digitized world, our plugged in society with free culture
overtones needs to be addressed. This is where the Creative Commons groups come
in, claiming that copyright is too prohibitive and denies people the freedom to
access and use all manner of creative works. It should be noted however that even Lawrence Lessig finds
these bills “onerous and inefficient”. The
issue is significant. Our new
technologies and need for libraries, museums and educational concerns to either
digitize or preserve works is real. The need for Movie studios to preserve
celluloid film is important for our culture. But this bill may go beyond the mere archiving of truly
orphaned works. It appears to put at risk all works, making a potential orphan
of any work, by any artist, living or dead. (Remember, it is a grandfathered
law). It exposes vast amounts of your work to be exploited by commercial users,
and places the burden of discovery on you. Furthermore, it limits your ability
to do anything about it once you’ve found an infringement. You might now understand
why it’s backed by huge corporations like Microsoft and Google who are publicly
supporting this bill. At the heart of this bill(s) are significantly limited damages
that a copyright holder could collect from an infringer. This assumes the
infringer performed a “diligent search” and then somehow the copyright owner
discovered an infringement and decided to take action in Federal Court. The creators of Intellectual Property, in our case, art,
illustration, photography – that is Visual Arts, have been working under the
assumption that their work is protected by U.S.Copyright law from the moment of
its creation. This is the result of the 1976 Copyright Act (which took effect
in 1978) and is in effect for your lifetime plus 70 years. (These rights can transfer
to your heirs) To further
formalize this guarantee, you may choose to register your work with the U.S.
Government, Copyright Office for a fee, and solidify or put legal teeth into
this exclusive right. The current law would allow you to halt the use of the
art, and collect damages and legal fees (I believe up to $150K) for each work
infringed. The Orphan Works legislation proposes a change in the damages
that can be pursued. Your only
remedy would be to bring a lawsuit in Federal Court, (a very expensive
endeavor) and the best you could hope is for a judge to order the payment of
what he believes would have been paid by a reasonable willing buyer and
reasonable willing seller before the infringement took place; no legal fees, no
statutory damages. The exception would be in the case of Museums, Libraries and
other entities where there is a proposed language provides a “get out of jail
free” card (Safe Haven) that protects them from any damages at all. The result would likely be to indirectly coerce artists,
illustrators, photographers, and any creative individual to actively maintain
and defend their copyright by registering each and every work with private,
commercial for-profit registries using as yet unproven technologies. These registries do not exist at this
time, and without registering your work with both the US Copyright office AND
potentially one or more of these registries, likely for a fee, your past,
current and future work, everything you’ve ever created as an artist (including
preliminary work) would have exposure to being determined an orphaned work by
anyone who wanted to copy, reproduce, create derivative works of, or flat out
steal your work. So you may have to work into your schedule some time to
digitize, and place all of your work on these registries. Here’s why. The potential “infringer” or “User” would be required to conduct
a “reasonably diligent search” –as yet undefined before using the work for any
purpose, including commercial use. The extent of the reasonably diligent search
would be in the hands of the infringer. This is where the projected concept of
the registries comes into play.
Registries are not required by the legislation, but rather the bill
refers to requiring potential users to search non-governmental databases of
copyrighted work. Since they
really don’t exist yet, it would seem some sort of new emergent industry of
registries would be needed. Further, In order to use the work, the infringer
needs to file notice of intent with the Copyright Office with only a text
description of the work, not the visual image itself. I hope you are getting
the shift in the burden of protection. Copyright would be no longer the “exclusive” right of the
copyright holder. It raises the question as to whether we could ever sell
“exclusive” rights again and guarantee our clients this exclusivity. Think of all of the work out there that
has no credit line in print, no signature on the work, no copyright notice
attached. In much of our industry
in particular it’s customary to have work published without authorship
notice. Moreover, notice that I said, “Domestic, foreign, published and
unpublished works regardless of their age.” The Orphan Works Act would seem to
be contradictory with international copyright standards. It is possible that this legislation
violates both the Berne Convention and the Agreement on Trade Related Aspects
of Intellectual Property (known at the TRIPs Agreement) both of which the US is
a member by requiring a “formality” as a condition of protecting one’s
copyright. So works by artists
outside the U.S. will be just as vulnerable to exposure as by domestic artists. Now, Your Call To Action:
I truly hope that this brief and somewhat un-detailed
explanation is useful to you. If
you are moved to act, which I hope you are; you need to write to your Senators
and Representatives in Washington. The time to act is NOW. This process is EASY and there are
several options available to you to do so. It literally takes less than two minutes. The letters are written for you, you
enter your zip code and your Senators and Representatives are automatically
found and their addresses entered.
There is a small section where you can personalize the letter if you
choose, and you simply push “SEND”.
I have been using the Illustrators' Partnership of America system which can be found at
their website: http://www.illustratorspartnership.org A similar site with a somewhat different point of view is
available from the Graphic Artist Guild at: There are differences in tone to the letters from each of these
advocacy groups, so you should carefully check out their positions and decide
which one best reflects your thoughts on the issue. Specifically, the Graphic Artists Guild stands in opposition
to the Senate bill, while not to the House Bill at this time, whereas the IPA
is fighting against the over-reaching scope of both bills. It would be advantageous for our
industry to have one voice at times like this, but I suppose choice has its
merits. I’ve have sent letters numerous times, and I want to share
portions the responses I received from my Senators, Ben Cardin and Barbara
Mikulski. I share these so that
you will understand the mindset of the legislators who may not grasp the wide
reaching effects of these bills: First from Senator Ben Cardin (Dem., Maryland) “In practical terms
what this means is that a family cannot restore wedding photographs of their
grandparents, if they cannot locate the original photographer to obtain
permission to use the copyrighted work; a library cannot display letters
written by American soldiers during World War II, if the library is unable to
contact the soldiers or their descendents; and a museum cannot restore or
exhibit old reels of film, photograph, or lithograph, if they cannot determine
the studio of origin or the photographer or artist that produced the work. And
from Senator Barbara Mikulski (Dem., Maryland) “As you know, an
orphan work is a copyrighted work where it is difficult or impossible to find
the copyright holder. This legislation changes the rules for using
copyrighted works in situations where the creator or owner cannot be identified.
If the user of a copyrighted work performed a diligent enough search to
find the owner beforehand, the user would not have to pay the owner
compensation under this bill if they were sued.I understand your
concerns that adopting these proposals would affect your ability to earn a
living as a photographer. I want you to know that I strongly believe
copyright laws should help foster creative endeavors that enrich the lives of
all Americans.” To be sure, the issue of Orphan Works will continue to be raised. I believe that one way or another
we are going to get legislation.
And if it doesn’t pass this session of Congress, we will be looking at
new leadership in these committees and who knows how sympathetic they will be
to our position. But it is important
that we make our voice heard to have a more Visual Artist friendly bill
fashioned. It would seem that
there would be a way to fashion a bill to allow libraries, archives and museums
more freedom to reproduce orphaned works for educational, preservation, or
archival purposes without infringement penalties. The trouble for me lies in
the exposure of works without attribution to the possible exploitation for
commercial purposes. There are Advocacy Organizations working in opposition to this
legislation; a partial list includes: The Illustrators'
Partnership of America The American Society of Illustrators Partnership The Canadian Association of Photographers and Illustrators in
Communications Advertising Photographers of America The Society of Photographers and Artists Representatives Editorial Photographers National Press Photographers Association Association of American Editorial Cartoonists The Illustrators Club of Washington DC, Maryland and Virginia Professional Women Photographers Inc Philadelphia/TriState Artists Equity Association Pro Imaging National Association of Record Industry Professionals Los Angeles Music Network American Association of Independent Music Stock Artists Alliance Colorado Alliance of Illustrators International Council of Creators of Graphic, Plastic and
Photographic Arts. United States Digital Imaging Group As mentioned earlier, the Graphic Artists Guild at this writing
is opposing only the Senate bill, but not the House Bill. Please get involved; this is your industry and your future. The time to act is NOW. Finally, let’s remember that visual
artists usually work alone. It is not an easy professional life, it requires us
to know business concepts, marketing, administration, accounting, law, ethics,
selling, public relations, and oh yeah, art. The road to success begins with stepping up and taking
responsibility for your industry.
That is essentially why we are here.
Consequently, such works that are
part of our rich national heritage are never exhibited…The Shawn Bentley Orphan
Works Act seeks to unite users and copyright owners at a basic level. It
does not create any orphans, and it does not create a license to infringe.”
