The Orphan Works Act of 2008

The Orphan Works Act of 2008
I was hoping to have a thoughtful and well-informed analysis of this situation for this post, but my personal schedule has made that difficult.

I can only say that this is about two pieces of legislation coming up before the House and Senate here in the U.S. that may adversely affect visual artists here (and those abroad who show or sell there work here), in terms of making it much more difficult to protect your work with copyright.

I will point you to more detailed information elsewhere and urge you to at least get an understanding of the issues.

Here is a description from the Illustrators Partnership of how the bills will affect visual artists:

H.R. 5889, The Orphan Works Act of 2008

S. 2913, The Shawn Bentley Orphan Works Act of 2008

Here are the actual bills if you want to wade through them, H.R.5889 and S.2913, on THOMAS from the Library of Congress.

The Illustrators Partnership has a series of form letters that you can send to your Representative or Senators by simply filling out a form and sending it. The system will even find your legislators by your zip code or address.

The letters themselves can give you some idea of the impact the bills will have on various aspects of the visual arts, as they are presented from the various points of view (illustrators, cartoonists, biomedical and scientific illustrators, photographers, etc.).

I’m not opposed to the original stated intention of the bills, to provide for the use by museums, libraries and other cultural institutions of works for which the copyright is no longer being actively defended; but the bills as they are worded don’t put the necessary definitions in place to restrict the provision to those kind of institutions and non-profit use, and go way beyond that into the creation of a bureaucratic nightmare for visual artists, who will now have to devote unreasonable time and resources to defending their art against opportunists, image thieves and copyright sharks.

The bills as they stand basically undermine many of the copyright protections we now enjoy and blithely take for granted. They need to be changed to protect those of us who don’t have the resources of Warner Brothers or Disney to constantly monitor use of our work with armies of lawyers.

Take a look. Be informed. Take a simple action.

I will only take a few minutes and it could save you hours of grief and countless dollars in the future.

7 Replies to “The Orphan Works Act of 2008”

  1. Quite possibly the single most personally useful (and important) blog posting I have encountered. Anywhere.

    I had, in fact, stumbled upon this issue just in the last few days but was at a loss as to what can be done. Thanks for the links, Charley.

    -Dan van Benthuysen

  2. I’m surprised that Disney isn’t doing something about this yet. I know they have teams of lawyers and all, but usually they are out there using them to make copyright law do whatever they want it to!

  3. @ oakling:
    Disney’s work will not be affected, as nobody with a sound mind would dare to infringe their work.

    @ David:
    interesting link, but rather biased – the bill clearly violates the “Berne Convention” regarding copyright (it’s a law of nations, by the way) which states that copyright is given without any formalities (as for example, registration).

    Furthermore it would severly harm copyright holders outside the US: these people would be obliged to register their work at a databank, too, as otherwise they would lose their right to sue any violation of copyright of their work in the US.

    An absurd notion, isn’t it?


  4. I remember there being a small ripple about this earlier this year, before the bill was re-introduced. Boing Boing did a piece on it.

    Now, again, Boing Boing and the EFF are talking about it. In particular, one of the comments on that post linked to EMG-Zine:

    Not saying there is nothing to be concerned about here, but people keep saying things like, “[artists] would be obliged to register their work at a databank, too, as otherwise they would lose their right to sue,” which according to EMG-Zine is quite plainly false.

    According to EMG-Zine, use of orphan works is still infringing. As soon as the artist shows up and tells the infringer to stop, they have to stop. Also, the artist can still sue for actual damages and loss of the value of their work. The things they can’t get are punitive damages and lawyers’ fees. But, and this is a big but, the infringer is only protected if they fulfilled a number of conditions. These include having performed a good faith search for the original author, and (important) compensating the author for any commercial use they made while infringing.

    Even more interesting is this:

    “But keep in mind that copyright law, as it is now, only allows you to sue punitively if you have registered a piece, which may be where some of the confusion and fear over this bill comes from. Yes, that’s right, the law is already that way.”

    There certainly seems to be plenty of room for debate on the merits of the bill, but there also seems to be a lot of fear and confusion floating around.

  5. @ Colin Peters:

    I’m afraid I’ve got to butt in again about the rights the creators of art in the rest of the world have to lose in the US – I’m working as an illustrator in Germany and I certainly do NOT register my artwork at a database in the US (most of my colleagues worldwide don’t even know anything of the possibility, nay, need to register their work, so that it’s origins become traceable).

    Up to now the copyright law worldwide is under regulation of the “Berne Convention” which positively states that no registration of any sort is needed to gain copyright on any piece of work an author creates.

    This leaves their and my work without any protection, as one would have to sue any violation of his copyright in the US at a federal court.

    A detected commercial violation of an artwork of me in the US would ensue a legal action which now also would cover my costs of the legal action – it wouldn’t cover it under the bill of Orphan Works any longer, giving any user full access to any artwork wordwide (as long as it is not created and registered in the United States).

    Another interesting point would arise, if MY artwork is registered by another user who found it in the internet:
    I would have to prove that this piece of art was created by ME (which would be rather difficult concerning artwork done 5 or 1o years ago – in most cases I could not even show any preliminary sketches as I discard them on a regular basis).

    So what’s the option for all the artists in the rest of the world now: the artwork of nearly the whole world becoming an “all for free” dump for exploitation in the US? (“Sue me if you can?”)

    I’m sorry, I cannot see that as an option at all …


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