Questions & Answers

Don’t Let Congress Orphan Your Work

Congress is rushing to pass a bill that will do great harm to creative expression in the United States. The Orphan Works Act of 2008 currently exists in two versions: House bill H.R. 5889, and Senate bill S 2913 The Shawn Bentley Orphan Works Act of 2008 . Both bills threaten individual creators by imposing unacceptable conditions on the creation of any work, from professional paintings to family snapshots. This includes published and unpublished work and any work ever placed on the internet. The Illustrators Partnership of America opposes both bills.

What is the Orphan Works Act?
A proposed amendment to copyright law that would impose a radically new business model on the licensing of copyrighted work.

How would it do that?
It would force all creators to digitize their life’s work and hand it over to privately-owned commercial databases or see it exposed to widespread infringement by anyone, for any purpose, however commercial or distasteful.

But isn’t the bill just a small adjustment to copyright law?
No, it’s a reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your duty to make your work available.

But the bill’s backers say that the goal of copyright law is to make work available to the public.
False: Copyright is "a legal device that provides the owner the right to control how a creative work is used." By allowing infringers to use any owner’s work without his knowledge or consent, the Orphan Works bill specifically nullifies that primary right of copyright law.

But isn’t the Orphan Works Act based on Copyright Office recommendations?
Yes, but the Copyright Office studied the specific subject of true orphaned work, where authors had died or abandoned their copyrights. This bill would orphan new work, now being created for commercial markets, a subject the Copyright Office never studied.

But the Copyright Office says an Orphan Work is a work whose author is hard to find.
Yes, but an author who’s hard to find is not necessarily the author of an orphaned work. A professional artist may be easily locatable to hundreds of clients, but still be hard for millions of other people to find. The failure of any one person to locate a copyright holder should not become a justification for appropriating that person’s creative property.

But the bill’s sponsors say it will benefit all artists.
False. It will benefit only re-mix artists, who cannot create without appropriating the work of others. It will not benefit professional artists, who generally must indemnify publishers that our work is original and not based on infringements.

But the bill says infringers will have to do a reasonably diligent search before infringing.
These bills are filled with ambiguous terms such as reasonable diligence, which will be left to courts to interpret on a case-by-case basis. Because of these ambiguities, the same work may be judged an orphan in one court proceeding and not in another.

But if the rights holder comes forward, he or she will be entitled to "reasonable compensation."
Since orphan works transactions will occur only after infringement, the rights holder will have no leverage to bargain for more than the infringer is willing to pay. In reality, serial infringers will establish low "reasonable" fees, which will effectively become the legal standard in lawsuits regarding such uses.

But the bill’s backers say artists can still claim statutory damages for the infringement of registered work.
Technically that’s true, but it’s beside the point. Creative people don’t make their livings suing infringers. They license their work through voluntary licensing agreements. Lawsuits are generally expensive, harrowing and uncertain.

But infringements occur now, so how will this bill change things?
It will create an enormous class of so-called "legal" infringements" in which "Illegal" rip-offs will become needles in the haystack.

But won’t registering works actually help users find authors?
No, just the opposite. The bill would let users infringe the works of authors they can’t find. By contrast, there currently exists a robust business by which artists employ agents, directories, source books and other advertising venues to make themselves available to buyers.

So why should the general public care about the Orphan Works Act?
Because the effects of this bill will expose any citizen’s creative work to infringement. This could be anything from amateur art to family snapshots, home videos, etc.

But most people don’t understand current copyright law.
Exactly, and under current law, they don’t have to - the law itself protects them from not understanding it: anything you create is considered your private property. You don’t have to take any active steps to secure that right.

Does that mean the Orphan Works Act would require me to take active steps?
Yes. All citizens would be required to register their work - not to protect it (because registries can’t protect work) - but to preserve the right to sue an infringer in federal court in case they ever discover their work has been infringed.

What will happen to citizens who don’t understand copyright law?
Under the Orphan Works amendment, ignorance of copyright law will be be no excuse against an infringer who has done a "reasonably diligent search" for a photo he found on a blog, photo sharing site, Facebook page, or other source.

But isn’t this law necessary to make orphaned work available for cultural usage?
The Orphan Works Act would legalize the infringement of billions of protected copyrights on the grounds that some of them may be orphans.The consequences of this blanket stripping of copyright protection will be a gold mine for opportunists. Within two weeks of the issuance of the Orphan Works Report in 2006, nearly all the domain names associated with orphan works were registered by commercial interests.

How can commercial interests take advantage of this bill?
Corporate image banks will be able to harvest these newly-created "orphans," alter them slightly to make them "derivative works," then register them as their own "creative" works. Freelancers could then be forced to compete against their own lost art - and that of their colleagues - for the new commissions they need to make a living. And ordinary citizens may find their personal photos used for any purpose, without their knowledge or consent.

But libraries and archives say they need this bill in order to digitize their collections.
Then a bill should be drafted to meet those needs without the blanket stripping of copyright protection.

But isn’t this just a simple expansion of fair use?
No, the Orphan Works Acts go far beyond current concepts of fair use. Despite the claim that these bills were designed to deal with the special situations of non profit museums, libraries and archives, they would instead force freelance creators to risk their own bodies of work to subsidize the start-up businesses of untested search technologies and untried business models - models which would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who actually create the art.

This would strike a blow at the heart of art itself, and it represents a radical departure from existing business models and copyright law. It is one reason - if hardly the only one - why international copyright law, specifically Article 5 (2) of the Berne Convention, prohibits the requirement of "any formality" as a pre-condition to the enjoyment of full copyright.

—Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

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