Orphan Works Act of 2008

It’s been a while since a bill in Congress has sparked as much panicked hand-wringing in the arts community as the Orphan Works Act of 2008 (pdf).

The Illustrators’ Partnership of America
calls it “cultural theft on an unprecedented scale.”

Tom Richmond says it is “a license to steal.”

Mark Simon really goes over the top:

You May Lose All the Rights to Every Piece of Art You Have Ever Created!… [T]he Orphan Works bill … affects every artist and photographer in the world…. [Y]ou are about to lose your copyright protection. Every one of you needs to stand up and be heard in order to protect what we have all created.

So just what is this terrible legislation that will punch your mother in the nose and drink the blood of your first born? Here’s a fairly straightforward description of the legislative intent from Arts Technica:

The “Orphan Works Act of 2008″ (HR 5889 and S 2913) attempts to create a system where new creators can use old works without fear of massive lawsuits, provided that a good faith effort has been made to find out if the work in question is copyrighted.

If the provisions in the bill are followed and a copyright holder does emerge later, the bill prevents the copyright owner from seeking the normal penalties for infringement. These can include massive statutory damages that need have no relation to any actual losses, and even the threat of such a lawsuit often leads creators to avoid using archival material in documentaries and other such works. Under the Orphan Works Act, a copyright holder can only claim “reasonable compensation,” which is defined as “the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.”

To qualify for this protection, creators must perform (and document) their “good faith” search for the copyright owner. They must be able to show that they could not locate any owner. They must file a “Notice of Use” with the Copyright Office before using the orphan work. They must provide attribution about the original copyright owner, if they can find this information (imagine a publisher who owned the copyright in a book but went out of business thirty years ago). They must include a special “orphan works” symbol that will be determined later by the Register of Copyrights. If all of these prerequisites are met, the creator can use the work in question with confidence, knowing that he will only have to pay a reasonable license fee if the copyright owner does emerge.

The Copyright Office also has to certify databases that can aid in the search for “pictorial, graphic, and sculptural works that are subject to copyright protection.” While it won’t actually run such a database, it will make sure that private databases meet proper criteria and that they are able to do visual searches.

I’ll be honest, I haven’t yet decided whether I think the Orphan Works Act is good, bad, or neutral. But I have serious concerns about the overheated rhetoric, rife with factual inaccuracies, that I’m hearing on this topic.

Please, before you allow yourself to be worked into a frenzy and sign on to fight in a holy war, read the bill. It’s not long and, compared to most legislation I’ve read, it’s fairly easy to follow. Maybe you’ll come to the same conclusion as those folks above or maybe you’ll decide the bill is innocuous or even positive. Either way, hopefully you’ll discover that much of the shrillest critiques are based on “facts” that just aren’t in the bill. For example:

  1. Under no circumstances can you lose your copyright on a work because it is “orphaned”. You are always entitled to reasonable compensation for the use of your work, even if your copyright is infringed upon by someone who is protected under the Orphan Works Act.
  2. The bill does not propose any requirement that works be documented in paid registries. Registering your work would simply be one way to minimize the likelihood that a “reasonably diligent” would come up empty handed.
  3. Some folks are saying that the legislation is just a giant hand out to companies like Corbis or Getty, which would presumably establish commercial registries. That may be true, but only if those corporations can add real value to the process. After all, it would be trivial for a non-profit organization like Fractured Atlas or the Illustrators’ Partnership to set up a free registry for the artists in its constituency.

Again, I’m not saying that I support the Orphan Works Act. There are some legitimate problems with it that I haven’t seen anyone address, such as the extent to which it relies on internet-connected databases which aren’t universally accessible. But before we get our collective knickers in a twist, let’s all take a deep breath, read the bill, and then make an honest assessment of the dangers and opportunities it proposes.

Once more:
House version (HR 5889)
Senate version (S 2913)

Feel free to use the comments on this post as an opportunity to have at it!


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9 Responses to “Orphan Works Act of 2008”

  1. lisa:

    thank you adam for visiting life illustrated and adding a reasoned voice to this debate.i will add your advice to my thought process about the bill…

  2. Fractured Atlas Blog › Orphan Works Bill Analysis:

    [...] been tracking the controversial Orphan Works Act of 2008. Today I received a “bill alert” from the Alliance of NY State Arts Organizations that [...]

  3. Val Wilson:

    I have a real problem (as an artist) with anyone using my artwork in a way that would not be personally acceptable to me. Resonable compensation couldn’t begin to make up for someone using artwork that has already been licensed to someone else for a legit project or an “exclusive” use. Moreover, we still don’t know what the search will be, how many registries there will be. And reading between the lines, and seeing the alignment of these “DATABASES” with certain huge search engines, pretty much means that to protect my rights, I would have to have a HUGE amount of time/resources to even confront an infringer regardless of the search made. And seeing how the government players are jumping ship to work for these giants, it certainly looks like this was done to appease the giants in the first place and its obvious that the original intent was either a just a sham or is being forgotten as fast as the artists and photographers that this bill will put out of business. My rights are what are currently being infringed, and that’s not much incentive to want to put it out there on the net. Even with the current penalties in place, theft is rampant now. This is just an open invitation.

    I have literally thousands of pieces of artwork that have been created just in the last year…that’s alot of art to have to register…just to keep it from being stolen by someone that I wouldn’t license to in the first place. (I seek out the companies that I want to work with) So Now, I’m off to work on meta data and watermarks and removing artwork from all the online communities where it might fall into the wrong hands later on. None of which will feed my little girl.

  4. Dave Moyer:

    i fail to see the urgent need to enable someone who can’t or isn’t willing to create or commission their own work to steal from someone else. if you don’t have the capability of creating your own work or the resources to buy it, find a new business.

  5. Adam Huttler:

    @Dave Moyer

    A big part of this bill is targeted at libraries and museums who want to use the works for educational purposes.

    Also, what about artists who want to make derivative works? Much of American art post WWII has been about “quoting” and re-contextualizing other works. It’s a major aspect of post-modernism and it has entered popular culture through Hip-Hop, etc.

  6. James Griffin:

    Early on the house bill talks about a standard of proof of copyright ownership as being”information from which a reasonable person could conclude that the owner of the infringed copyright’s claim of ownership and infringement are valid”.
    How is proof of ownership proved? Must I dig up old sketches for works created 30 years ago? I’m worried that a slick lawyer could make “reasonable person” to apply to anyone, reasonable or not. What standards of proof are acceptable that I created the work?
    Later the bill discussed “reasonable compensation”, based on what a willing buyer would have paid a willing seller. How is this determined if no examples of such a transaction can be found? How is it decided what these willing negotiators would agree to?
    Similarly, later in the bill the term ” reaonable compensation” is used in reference to paying the owner of a copyright. Who determines what is reasonable?
    These questions are just a few that occurred to me reading the House bill. What it looks like is a nice rich vein for lawyers to mine, and an expensive waste of court time and legal fees for years to come.

  7. Adam Huttler:

    @James

    I understand your frustration, but this kind of language is very standard in the law. The danger with being too explicit is that it doesn’t leave judges or juries any discretion to exercise common sense or respond to the particulars of a case. (Look at NY’s Rockefeller drug laws, for example.)

    There are well established standards in the law for terms like “reasonable person” and “reasonable compensation”, but ultimately this stuff gets settled by case law. So it’s hard to know exactly what standards will be applied until a judge makes a ruling.

    Having said that, a lot of this stuff is really common sense. If you can convince the judge or the jury that the work is yours (through any evidence whatsoever), then you should be protected. And there’s always some way to benchmark reasonable compensation. What’s the standard in the industry for X kind of work used in Y way? What did company X pay another illustrator? What did artist Y receive for different artwork Z?

  8. Joe Wilson:

    Ok, you are right, no one is technically losing their copyrights with this bill, but it certainly takes the teeth out of them. By taking away an artist’s ability to seek damages it becomes prohibitive for an artist to protect their own works.

    Yep, there is no one forcing us to use the new registries. It will just merely be such a good idea that to NOT use them is foolish, and that is as good as forcing us to use them isn’t it? Say a bill was enacted that let people take anything they want out of your home if the door is unlocked. No one is FORCING you to lock your doors. Except in reality they ARE, if you don’t want your stuff taken.

    Yes, the bill is said to be targeted at museums and libraries. Why isn’t it written that way then? The bill’s supporters are using that as a smoke screen, using an example most people would support, while writing the bill in such a way that it’s actual useage is much broader.

    “re-contextualizing other works” Great. There is Fair Use for that, and it’s already in place. Anyone else who wants to use MY work to make THEIR work needs to go through me, and I see no reason why their desire to use my work comes before my desire for them to NOT use my work. I created it, I would think my wishes come first. If you find an old piece of art and you don’t know who it belongs to, you already know everything you need to know about it, which is YOU didn’t create it. Simple.

    “It’s a major aspect of post-modernism and it has entered popular culture through Hip-Hop” So you are saying they can already use what they need to use and no one is complaining? So where’s the problem then

  9. Mission Possible:

    I don’t understand why so many art organizations are fighting against the Orphan Works bill when they are too cowardly to speak out against people who are already violating the copyright of other artists as Shepard Fairey has done. He is a prime example of the type of artist we should be going against instead of supporting. Put up or shut up. Look up what he did with the art of Rene Mederos. Or are you afraid of making the Obama crowd angry? You can’t have both worlds you know! We can’t stand for some rights some of the time. We must stand against ANYONE who steps on a fellow artists rights.