Published on June 23rd, 2008 | by Autumn Wiggins95
The Shawn Bentley Orphan Works Act: How New Copyright Legislation Will Affect Indie Artists and Crafters
Amid a dwindling economy, a controversial war, and an incomprehensible environmental crisis, it’s easy to overlook the more “benign” pitter-patter of Capitol Hill. As modern makers we declare independence in a sense, through what we create, but count on the protection of copyright in order to exclusively maintain our intellectual property. The Shawn Bentley Orphan Works Act, if allowed to become law, will drastically weaken and complicate rights of individuals to pursue damages for copyright infringement. This legislation claims good intentions, yet has been drafted with dangerous loopholes.
I urge the indie craft community to take a closer look at this bill, and act quickly… it was introduced to congress on April 24th, 2008, and is rumored to be fast-tracked to a vote.
In this special two-part post, I will introduce you to the legislation, and Skye will jump in later with some advocacy tips.
Currently, any work you produce is automatically protected under copyright law for your lifetime + 70 years. This includes pictoral, graphical, sculptural, and literary creations, which are common among crafters. It does not require you to use a “c” symbol, or register it with the U.S. Copyright Office. The fee for you to do so is $45, and will allow you to sue for statutory damages in the instance of a lawsuit. Even if you have not registered your work, you can be awarded losses suffered, profits gained by the infringer, and recover attorneys fees. Should you produce a “work for hire”, you essentially transfer your copyright to the business in which you are contracted with. Under Creative Commons licensing, you can voluntarily endow rights to the public to use the work.
Due to the consequences of infringement, most individuals and companies avoid reproducing any work without arranging compensation with the artist upfront, or at least getting permission. However, ample exclusions are afforded under Fair Use for works of parody, and limited reproduction by academic institutions, libraries, and charitable non-profits. When interest arises to use a work, whether it be in an original or altered form, the copyright holder may not be known or cannot be contacted. Therefore, many works may not live up to their full potential of public exposure, commercial profit, or derivative creativity. Tough cookies, right?
Concern about this has been expressed by those who wish to use this copyrighted material. Senators Orrin Hatch and Patrick Leahy tapped the U.S. Copyright Office to conduct research on solutions for what are innocently referred to as “orphan” works. A notice of inquiry was released in 2005, and in 2006 they filed this telling report. As you read through, you might notice some interesting suggestions made by companies such as Microsoft, Google, Creative Commons, Getty, and the Association of American Publishers, to name a few.
Based on these recommendations, the Orphan Works Act was drafted. The 2006 version died in a judicial committee. The re-introduced bill aims to remedy a few of the objected formalities, but is essentially the same:
In very broad terms it states that legalized infringement whether private or commercial will require a “diligent” search for the owner of the copyright before proceeding with use. These searches can be carried out on the internet through any number of registries created by the private sector whom may charge a fee for their use to artists and searchers alike. If the work is not listed in the registries the user chooses to search, they may use the work for any private or commercial purpose, and can even create a derived work subject to it’s own copyright. If the author of the work does come forward, they are only entitled to “reasonable compensation” to be determined between the two parties or a judge, and may not sue for additional damages or attorney fees. The artist will no longer have the upfront advantage to deny permission or negotiate their fee.
The Berne Convention, the basis of regulation for international copyright, states that no creator be required register a work to gain a copyright. Orphan Works claims to bypass this requirement, since registering is voluntary and relies on registries created by the private sector. Indeed, corporations that deal in web search and image cataloging technology were deeply involved in drafting the bill, and stand to gain a windfall of profits upon it’s inception. However, for artists, this is at very least, a logistical nightmare.
This legislation has been opposed by several organizations such as the Illustrators Partnership of America, the National Union of Journalists, The American Association of Independent Music, the Association of Medical Illustrators, the Association of American Editorial Cartoonists (AAEC), the National Cartoonists Society (NCS), and the Advertising Photographers of America, among others.
I have sifted through a lot of information about Orphan Works, and here is my round-up of what’s worth checking out:
Audio Interview with Brad Holland of the Illustrators Partnership - Brad helped to get the 2006 version of Orphan Works canned. He offers an interesting perspective.
There is a lot of talk as to what’s at stake for artists and authors, but some confusion exists about copyright among crafters. U.S. Copyright Code designates visual art of that which is “pictoral, graphical, or sculptural”. Some things we make might be considered sculptural, but if your item can be designated as a “useful article”, it no longer enjoys the protection of copyright. Say you design and sew a tote bag and screen print your own drawing on it. The drawing is protected, but the tote bag design is not. Also, the photograph you take of said tote bag is copyrighted.
Incidentally, a separate bill recently introduced that would change copyright code is the Design Piracy Prohibition Act (full text). If passed it would protect designs of the following items: men’s, women’s, or children’s clothing, undergarments, outerwear, gloves, footwear, headgear, handbags, purses, tote bags, belts, and eyeglass frames.
I see this as a double-edged sword for crafters. The rampant use of indie craft aesthetics in retail apparrel really burns me up. Yet, many of us gain inspiration from fashion trends. Also, I’m not entirely clear on what would be defined as a dirivitive work in these situations. Here are a few articles I found about it:
My understanding is that if this passed, design would fall under the jurisdiction of Orphan Works as well. From what I can tell, no one has addressed the ramifications of that.
Should Orphan Works become law, it does offer one advantage to crafters. It would open up opportunities for us to use imagery outside the public domain in our creations. So, I’m just wondering… would you?