As you probably know, last Friday both the Senate and House introduced variations of the same bill: The Shawn Bentley Orphan Acts of 2008 (S. 2913) and The Orphan Works Act of 2008 (H.R. 5889). If these bills pass, they will have devastating consequences for visual artists.
Having been involved in strategy sessions for the last few days with Brad Holland (Illustrator’s Partnership) and others, let me outline what you can do that would be helpful.
1. Write a letter to your congressional House leader and Senators stating your opposition to the bills. Send the letter both by e-mail and fax.
2. Help raise awareness about the potential consequences of this legislation, and ask everyone you know to write and send letters.
A number of groups which oppose this legislation are collaborating on creating a website which will enable you to e-mail your congressional leaders with the push of button. It will also contain sample letters. I will post the link as soon as the site is live.
The main reasons to object to this legislation are listed below. In case any of you want to start work on your letters before the sample letters are published, I’ve also included additional information to help you explain and clarify these objections.
1. It changes the 1976
Under current law, you receive basic copyright protection even if you don’t register your work. Under Orphan Works law your work could be declared an orphan even if you have registered it.
2. It requires artists to attempt to protect their work by registering it with a digital data base system (presumably for a fee, in addition to the copyright filing fee)—when no such system exists!
The proposed legislation is predicated on the establishment of private, profit making registries that would establish databases of digital versions of artworks and provide a place for infringers to try to locate the artist, BUT it will be enacted whether or not these data bases ever come into existence. This will relieve the infringer of liability if he simply attempts a search that cannot possibly be performed successfully.
In addition, the legislation places no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would presumably fall entirely on the artist, and even if an image is contained in the registry, as long as the infringer “looks” without finding it, the infringement is allowed. There is no liability imposed for the failure of a database to find an image registered in that database when it is searched, and no requirement that all available databases be searched, thus potentially requiring multiple registrations (and multiple registration fees).
3. It eliminates statutory damages wherever an infringer can successfully claim an orphan works defense, thus eliminating the only tool the law provides to prevent deliberate infringement.
Current law almost certainly deters rampant infringement because the present remedies – damages of up to $150,000 per infringing article-- make infringement risky. By “limiting remedies,” the Orphan Works amendment will effectively create a no-fault license to infringe.
4. It allows for an infringer to create—and copyright—a derivative work from the original design.
Under current law, the right to create a derivative work is one of an artist’s exclusive rights. Section103(a) says a user can’t copyright a derivative image that he’s infringed. “Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”
If this legislation passes it would mean a return to pre-1976 U.S. Copyright Act when many artists' works fell into the public domain because they could not afford to comply with the formalities of registration as a condition of copyright protection. This violates the trust under which American artists have worked for the last 30 years, and nullifies our U.S. Copyright registrations. Further, it is against the Berne Convention, and invites retaliation from around the world because international artists' works are just as vulnerable to infringement under the U.S. Orphan Works Act.
Now let me recap the current situation:
The Senate has only given a few days for comments on the bill to be made; they are due Wednesday, April 30th. The House has not specified a time-frame, and may give as little as 24 hours notice before closing the window for comments. There are several loosely allied groups which are opposing the legislation. These include The Illustrator’s Partnership (illustrators)
Although the bills are similar, there are some important differences to note. Both are devastating to all visual artists, but the House bill is somewhat less objectionable. Here are the three main differences:
1. The House bill includes an exception for useful articles, which (as far as I can determine) means that products (such as textiles and mugs) which are functional whether or not design has been applied to them, will not be impacted by this legislation.
2. The House bill also requires that manufacturers file their intention to use an image before they can use it --although it does not (a) specify a time period or method for doing so, (b) does not require an image to be included, only a verbal description (the Mona Lisa, for example could be described as “a dark-haired woman with an unusual expression” which would supposedly allow Leonardo to identify his work), and (c) does not require the filings to be readily searchable to allow an artist to monitor unauthorized uses of his/her work.
3. The House bill allows for a longer (possible) time period before implementation: January 1, 2013 vs. the Senate bill which uses the date of January 1, 2011. Unfortunately both bills are scheduled to take effect on the earlier of: “the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic and sculptural works, and are available to the public through the Internet; or the January 1st, 2011 or 2013 listed by the respective bills. This means that if there is no visually searchable database operable before the date(s) listed, the legislation goes into effect anyway!
If you would like additional information on the potential impact of this legislation, you can learn more by
a. Reviewing the submission to the House by the Illustrator’s Partnership http://www.illustra
b. Listening to Brad Holland’s informative webcast: http://www.sellyour
This is a very serious situation, and will require a concerted effort on all of our parts to stop it. I’m glad to see so much posting going on… and I believe that together we CAN make a difference.
This may be forwarded in its entirety to any interested parties.
