Tuesday, May 20, 2008

Take Action: Don't Let Congress Orphan Your Work.

In the unlikely event that you haven't already heard about the Orphaned Works bill before congress, here is a summary of objections--from the following website that also makes it easy for you to communicate with your members of Congress:


This particular information is under "For Visual Artists - The Bullet Point Letter," but feel free to use any of the templates on the web site; when you fill out your address, your members of Congress will be automatically identified.


The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It is based on the Copyright Office’s study of orphaned work - yet the authors of that study have exceeded their mandate by extrapolating a widespread failure in commercial markets. This is an area which they never studied. If the intent of this bill is to find a way for museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who are hard to find, the authors should not rely on undocumented assertions about markets in which they conducted no studies.

For the record, I am alive, working and managing my copyrights. I can be located. I take steps to make myself accessible. Yet this law dictates that if any user fails to find me, that constitutes a market failure. No, that constitutes a human failure. Clients who work in my markets find me all the time.

This bill would expose countless works like mine to abuse. It would endanger any form of visual art - from professional paintings to family snapshots. It would affect any picture ever put on the internet. Visual art is especially vulnerable because an artist’s work can be published without his signature or credit line, or because credit lines can be removed by others. The widespread orphaning of images will harm not only artists, but all who work in collateral small businesses such as artists representatives, directories and source books, web site designers as well as all those industries which license art and anyone in the image-making public.

In the interest of brevity, I’ll list some basic objections I and other copyright holders have to this bill.

  • The bill is written so broadly its use cannot be confined to true orphaned work.
  • It would permit an infringer to determine when he or she has made a “reasonable effort” to locate me - even though the infringer would have a financial interest in not locating me.
  • It would be retroactive, which means I would be penalized for not complying with laws which didn’t exist at the time I did the work.
  • It would expose my future work to infringement immediately upon creation, even though I am alive, in business and managing my copyrights.
  • It would place an impossible burden of diligence on me to protect my work, because infringements can occur anytime, anywhere in the world.
  • It would force me into court to contest the diligence of an infringer’s search for me, yet it would remove any meaningful remedies for infringement.
  • This means I would lose the only means the law gives me to enforce copyright compliance.
  • It would force me into court to prove the value of my work, after the work had already been infringed and my exclusive right of copyright was lost;
  • Yet it would limit “reasonable compensation” to whatever sum an infringer had established as a market rate for his use of orphaned work.
  • By “limiting remedies,” the bill guarantees that the cost of suing an infringer could exceed whatever sum I might recover in a successful court action.
  • Yet it would set no limits on the amount an infringer could win from me in a counter suit.
  • It would deny me injunctive relief in situations where the entirety of my work has been used in a so-called “transformative” work.
  • Which would be a gold mine for infringers, who could harvest “orphans,” re-cast them as derivatives, then copyright the derivatives.
  • At present, the law does not allow infringers to claim my work by infringing it, but this bill would let them.
  • This bill would rob me of my exclusive right of copyright, which in the marketplace triples the fee I can get for one-time usage.
  • This means my entire inventory of work would be devalued by 2/3 the moment this bill takes effect.
  • This bill would prevent me from restricting the use of my art on cheap or distasteful products or on products competitive with my paying clients.
  • And it could drive my work into low-end markets where I would otherwise never license my work.
  • While the bill would not legislate “registries,”it would have the same effect, by exposing to infringement the work of artists who don’t impose registration on themselves.
  • This would force me to pay protection money to businessmen to keep something I’ve created myself.
  • This would violate existing copyright law, which says “Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.” http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview
  • It would force all visual artists to expose our lives’ work to infringement to subsidize the start-up of commercial registries.
  • These registries would rely on image-recognition technology, which is still in its infancy and not reliable.
  • Also, no registry will be meaningful until all pictures which anyone wishes to protect have been registered.
  • Otherwise, any picture not found in a registry will be considered an orphan by users wishing to document a “reasonably diligent search.”
  • This means commercial registries will actually orphan copyright-protected work.
  • Which means the bill will have the opposite effect to its stated intent.

To sum up, the Orphan Works Act exceeds its mandate by promising to make orphans of any work whose author any infringer fails to find.

  • It fails to properly define the category of orphaned work.
  • It sets the infringer’s bar of due diligence so low it guarantees abuse.
  • It would force into the courts countless business decisions which should be made in the marketplace.
  • It creates problems which do not now exist, but which would require the expansion of the Federal judiciary system to solve.