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.
- » See also: A Review of the Green Guide for Artists
- » Get Crafting a Green World by RSS or sign up by email.
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
Also in a quick reply to Matt. Many copyrights apply overseas, including in China due to as you mentioned, signed treaties. We still have no need to register and infringement in any country that has ratified said agreements (China included) must abide by them. If any of my works turned up in any country I have nearly the same rights I have here without registration.
Additionally on the comment of something being orphaned resulting in the same as any other infringement, it inherently is not or this legislation would not even need be in effect. The differences are quite marked if you read the bill and some of the articles on the topic.
[...] for artists. You can read more about the bill here and a more detailed report with further links here. Or a really scary (for me as an artist) detailed article on what this bill will allow is [...]
From Publaw:
–
Regretfully, many copyright owners neglect to obtain copyright registration for their creative works. The reasons for not obtaining copyright registration run the spectrum from “It’s not required.”, “I don’t have or want to spend the $30 registration fee.”, “I don’t have the time to complete the registration application.” to “I forgot.”. Although the copyright owner may have spent significant time and expense in creating and/or publishing their creative work their failure to register the copyrighted work, or to register it in a timely manner, may preclude the copyright owner from pursuing specific remedies in the event their work has been copyright infringed.
The copyright owner should register a work in a timely manner for the following reasons. First, in the United States copyright registration is a prerequisite for bringing a copyright infringement lawsuit. A copyright owner cannot proceed with a copyright infringement lawsuit unless the work has been registered. Although a copyright owner might wonder why they should spend the time and money in registering the work before an infringement occurs when they can register the work after it has been infringed such reasoning could prove to be very costly and damaging to the copyright owner. The copyright owner might also be thinking that they would never file a lawsuit for infringement so why should they take the time and spend $30 to register the work. But if a lawsuit ever becomes an eventuality, at a minimum it could cost the copyright owner a significantly higher registration fee to expedite the registration of the work so that the lawsuit could be filed.
–
I can’t stress this enough. A lot of you keep saying that you’ll be in a legal gray area with this new law, but you already are if you don’t register your work. This new law does not change that, it just adds a few different ways you can be screwed over. If you register your work and give the copyright office current contact information, then there is no way anyone can declare your work orphaned because the way to get in touch with you is right there in the Library of Congress for the world to see.
And if someone infringes your copyright even when it’s registered and tries to pull the orphaned defense, you can hand them their ass in court. That’s what I meant above, Vince.
I’ll shut up about registering now :P.
I feel bit concerned about using the articles comments a s a forum; however, in any case. My particular problem doesn’t arises in a couple of areas. Particularly in the area of poetry or short stories. Quite often one will post these to a personal blog or web page with a copyright symbol attached. It is more than a bit likely that something like this will be “borrowed” with no real cruel intent and have its copyright symbol changed or removed. And it is in this context infringement by a company becomes more likely.
The problem with registration in this kind of instance, particularly if one is building a body of work for publishers, is that a day of work could easily cost upwards of $300, and that is merely a day.
When I am not paying for further education I only make $600 a week and would never be able to cover the costs of a series of copyrights like that. Of course anything I held strong pride in would be registered anyway and then I would find no trouble ideally.
However, in the case above a search would need to be by full text in whatever registries are acceptable, nothing would turn up, and the original artist would quickly find himself fighting the derivative works clause.
In regards to a misconception you may have with the laws, you can indeed file suit against anyone infringing on your copyright without registration. The difference is this, you are not entitled to statutory damages only provable damages (the burden of proof is removed for registered works) and you may not sue for a lawyers fee. Rights you still do have include a demand that the infringement stop and damages based on money that would have gone to you beforehand, which basically defaults to the ‘reasonable’ price legal schema.
Copyright law is well defined, I have two books on the subject for a variety of reasons but mostly because it hits close to home. Art is something you pour more than a bit of your soul into, and rarely is anything you would maintain the copyright to not meant for yourself, though you may share it with the public out of pride, or hopes for criticism. The very idea of putting your soul into something meant for yourself and seeing another use it without your permission inspires some anger, I must admit.
It is for this reason I find this bill so unfathomable. I have tried to see a personal compromise with it but it is too loosely written and too likely to personally affect me in a negative way. I would say were I to live my entire life out there is only a 2% chance it would come up…and it is therefore unfortunate that I hold the law to six sigma.
It’s my understanding that you can register your copyright prior to filing a lawsuit even if the infringement happened while it was unregistered. Also, that you are able to sue for actual damages which include any profits gained by the user from your work. It seems like that would be enough to keep would be commercial infringers at bay.
With Orphan Works, you are instead forced to settle for “reasonable compensation”. As if you were an employee they just forgot to pay.
Yes this is true up to three months after the infringement occurs, if you find out later than that you cannot take advantage of this.
Dear Joshi,
In response to your comment that “laws that determine copyright will still be in place”, I disagree. Please read the following passage excerpted from:
“Orphan Works - No Myth” by Brad Holland
http://tinyurl.com/43d7y4
“…on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.”
I seems to me that during my lifetime the US has failed to be what it claims to be - a free democracy. I grew up when the US tried to make me a military slave to its unjust war. A president who cheated to be become president created a new one. Congress refused to action against him. What is new? Why not use the poorest people as pawns, this time artists. There is a way out. Make copyright democratic. For peole who cannot afford them make them free. Add that to the stupid bill. If not, it is the same old facsist county it has become only now it is getting worse (again). Oh ,cooperations rights need to be always less that those of the people…
Ben Frankin said that his country was were freedom was. Maybe the US is not his country.
hello it is test. WinRAR provides the full RAR and ZIP file support, can decompress CAB, GZIP, ACE and other archive formats.
hkrvfekrgtfzxucdbtgcdukpbkgzbgcpuvxhello