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:
The Sean Bentley Orphan Works Act of 2008 (full text)
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:
How the Orphan Works Bill Affects Visual Artists
Frequently Asked Questions About Orphan Works
Orphan Works - A Unique Set of Myths and Facts by John Harrington
- 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:
Wikipedia - Design Piracy Prohibition Act
Design Piracy Prohibition Act: Historical Regression
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?
Image credit: ax2groin on Flickr by a Creative Commons license
my apologies to Slashdot, I forgot which site linked me here. Shame on you, Digg.
Another point. Not having to put a c on your work and not having to register it was an awful idea. How is anyone supposed to know who made the work, and if it’s still under copyright? I almost feel like it was done to muddy the waters so much that no one would dare use what they believe to be an orphaned work, just in case someone would pop out of nowhere with a lawsuit. This new law is a step in the right direction.
The fact that so many people are making a stink about this is proof enough for me that corporations will have a hard time taking advantage of non-orphaned works.
This isn’t a free pass to go plundering the independent creative world, it’s a way to standardize the process of finding orphaned works. And no matter who you are - corporation or individual - if your work so resembles an orphaned work that no one can track you down or find a shred of evidence that you’re still enforcing your rights, then what are you doing with it copyrighted? Stop depriving human soceity and culture of what, according to all the natural laws of the universe and human behavior, it is entitled to.
I honestly thought pigs would fly before a Crafting a Green World post would incite a Digg riot.
Laws are black and white, but those with vague language can be interpreted in many shades of gray. I think artists are perfectly within reason to explore the consequences of this bill.
If it was truly in the public interest, then commercial gain would be prohibited.
This bill is a great thing. There are so many old jazz and blues albums, so many novels, so many movies where it’s not clear who inherited the rights, but since they aren’t clearly in the public domain no one will publish them.
This bill would mean there’s more material available for Project Gutenberg and Archive.org. That is a fantastic thing.
Oh I’m glad people are thinking about how laws will affect them, and I don’t have a problem with the worry that corporations will exploit this - I hope it doesn’t happen either.
I guess my whole problem with the counteratgument is if your work is so neglected as to have it be declared orphaned, what good to culture and soceity was it? Is as though you never made it at all, and for all you’re getting from it, it may as well be in the public domain. The difference is that you can use the legal system to keep it trapped in obscurity.
Don’t forget that, should a copyrighted work be declared orphaned, you don’t magically lose your rights to it. Only derivative works are copyrightable in this case, so it’s not like a huge corporation can steal your copyright like some kind of IP eminent domain (if they could, I definitely wouldn’t support this bill). As long as you have it registered with the copyright office, you’ll be fine.
And commercial gain from other people’s works is inevitable and desirable. Even if you never orphan your work, the copyright will expire someday (I hope). If we return to a sane copyright system, you might even live to see someone else profit from things you made. This is how copyright is supposed to work.
copyrights are being granted, regardless of what they must pass thru to asrrive at the registrar.
i just received a cert of (c), it still takes a short time, approx 1 month.
no one is saying that the orphan act is made to enable IP theft, everyone is saying the onerous rules make it easily possible for ANYONE outside the US to create derivative works and pawn them as the real deal, since ONLY HERE will this silly and short sighted act be enacted if it passes.
it practically enables IP theft of America IP.
bootlegging of DVDs and CDs will in effect, be legalized and if you think China is producing a lot of bootlegged product, wait until this passes.
They will never perform a diligent search and they will never have a stack of bullshit paperwork to say they followed the steps-they will just go from destroying millions of pieces of bootleg media to putting it all back in their boxes and selling them, SAYING that they did DO all this stupid crap.
-my question is, why is this idiot being taken seriously?
-why did the commish of copyright during an interview about this lash out at the respected and very knowledgable interviewer and pracatically show anger and bias towards current American IP?
-where the fu*k is the MPAA, the RIAA, and all THOSE assholes, because they will suffer the most(*see above where I discuss China).
-do they think they’re gonna go there and sue everyone making bootlegs?
-since when has it become so goddamn important that some obscure item be used today and some poor slob cant figure out who the owner is?
what is the PROBLEM-MAKE A FUCKING NEW PIECE OF ART!
for fucks sake this is ridiculous.
US congress-what a joke-they couldnt pass the MCAS exams of MA., why should the kids even have to try?
US copyright laws don’t apply overseas. We have treaties and things but for the most part we have different laws in different countries. If you want your works protected in China, you’re probably better off trying to register them there. It is pure arrogance to assume all your rights here apply everywhere in the world.
If someone uses your work and claims it’s orphaned, and it’s not, then it’s no different than any other kind of copyright infringement. Like I’ve been saying, as long as you register it, then it will be an open-and- shut case.
Matt - you are all about people registering their works with the copyright office. And yes, it seems like the easy and logical thing to do if this were to become law.
What I think you seem to be missing is that it is expensive and time consuming to get all of your work copyrighted. As an indie artist/crafter, I do not have the financial means yet to register EVERY work I come up with. Yes, I do know about batch registering, but even then to make it worth your while, you might as well send in as much as you can every six months.
But I am trying to make money right now with trends that might not be around in six months. That is suppose to be the advantage of being an independent and free lance artist - you can change and manipulate your work easily and quickly. No needing to figure in lead times on fabrication, distribution, etc. Or trying to meet a 12 week turn around. I can think something today and have it for sale tomorrow.
This law would change the one small advantage I have over big business.
Matt,
China ratified the Berne Convention along with many many other countries:
http://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_treaties
Here is my response on Digg:
This article was written with the indie art and craft community in mind, a sub-culture is largely rooted on the internet.
From what I can tell, it hasn’t been mentioned on any of our popular websites, blogs, or publications. Many of us promote and sell our work mainly online, and have a lot of photos and artwork floating around in places we aren’t even aware of.
Watermarks and copyright symbols aren’t going to do any good, because this law requires users to credit the artist if they know their name, and to include a symbol (not yet specified) to indicate it is an orphan. My images could be hosted on any number of servers that have not provided contact information. If the grounds of a “reasonably diligent” search include fee based image recognition databases, then the only way to ensure that my work is not orphaned is to pay a listing fee on what will certainly be a myriad of registries in created by the private sector. The U.S. Copyright Office will not provide this service, but will link to many of them.
This legislation is not beneficial to most artists or authors. I understand why some would see it as non-threatening, and even needed.
Many have expressed that simply changing some of the language used in the law would serve the purpose of allowing these out-of-date works to be released without compromising the rights of modern creators.
What bothers me the most, and the reason for some of my strong terms is that I hate the idea that a company I despise could derive an ad campaign from one of my drawings, or apply it to cheap mass-produced merchandise just because it was being hosted on some obscure server without my knowledge or credit to me, and I didn’t have enough money to list everything I’ve ever created in a commercial search engine. I may be entitled to “reasonable compensation”, but chances are it would be much less than what I would have bargained for. It should have been my right to deny permission in the first place, and seek damages if they had used it without that. In a way, I would feel like my artistic intent had been raped. Would I go so far as sue the person who ripped it off digitally in the first place? Nope, and honestly I don’t have a problem with private use, which is why I’m a big advocate of Creative Commons.
The way I see it, these new regulations open a door for highly unethical practices.
Having read the full bill and done some independent research, I still find the Orphan Works troubling. The derivative work changes and lack of an explicit right for copyright owners to demand the infringing party to stop using the work are especially troubling. Though as the bill claims not to deny rights in other legislation, it may not necessarily infringe on this right and merely make the issue a gray area
As an aspiring author and writer of many small works that float around the web. It would not be unusual to one day find something of mine used by some other, perhaps even a company, for whatever ends. Without an explicit right to deny use I cannot stop the infringement even if I find it in particular distaste. Furthermore should there be a derived work that the author believes distorts his original work in an unacceptable way, he has no recourse.
A further concern is the definition of the ‘reasonable’ compensation as it requires that a price be reached based on what would be agreed upon prior to infringement. This is particularly bothersome because the infringement would inherently change those conditions.
Suppose a company notices your work would do well in their marketing campaign and appear to be orphaned (in my case it is likely to be a more blatant plagiarism posted somewhere on the internet). They perform the required search and inquiry, and then begin using your work at the lucky result of no owner.
You discover this and make an attempt to stop use; however, this is not an option to you, and compensation that reflects your frustration is no longer ‘reasonable’. Furthermore, suppose they use your work in a distasteful ad campaign, as it is a derivative work with clear creative input by them, you can do nothing about it and have no rights. This is a hypothetical I can arrive at in mere minutes and I doubt many less honest companies will take any longer.
It is my thought that the goals this bill aimed for could be better achieved by merely changed the copyright term (if possible, that is barring there is no international agreement that forbids it) to 14 years as suggested by a few inquiries into the ideal term or at the very least the life of the author.
As it is I do not support this bill and intend to contact my congressman regarding it. It is a weakly written piece of legislation that I see all too much of these days.