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
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I would caution folks that just because companies commented during a public comment period, does not mean that the study by the Copyright Office was a corporate cabal. Whenever federal, state, or local government has a public comment period on an issue or a proposed piece of legislation, companies who will be affected routinely submit comments.
Also, the bill does not require searches to be performed on the internet or in commercial databases. That’s a prediction of the most likely way that “reasonably diligent” searches would be carried out, and I agree that is likely to happen, but it is not a requirement of the bill. Whether a search is considered “reasonably diligent” is to be judged on a case by case basis upon the author emerging to contest orphan status of his or her work.
Laws, laws laws and more laws just what we need. thanks Dictator Bush!
http://www.FireMe.To/udi
I won’t comment on the lateness of such an article (this was a huge deal a couple of months ago), but I will bring your attention to a couple of inaccuracies in your article.
First of all, this “diligent search” you mention is not confined to a simply online search of registries, but instead must hold proof of a lot more work being done. For a piece of work to be deemed orphaned, as well as a search of the registries, one would also need proof that a name search was performed, that they have attempted to contact anyone who appeared to be the copyright holder or knew the copyright holder (thus, if it’s on a website, the website owner and so on), they’d have to check anywhere that the work was curated or exhibited and prove no one there knew who the copyright holder was and check library catalogues and cross check and so on and so forth. Effectively, someone would have to jump through quite a few hoops in order to make deem a work orphaned.
Since the bill was made up to deal with work that is incredibly old and can easily be proved to no longer have a copyright holder, it would seem to be a rare thing if the works of contemporary indie artists should be affected as it would be difficult for the work to fall under the title of orphan in the first place.
This is not a bill that’s going to legalise art theft (as some have preicted without doing their homework). Nor is it necessary for one to register all of their work with a copyright registry company in order for them to still hold full copyright as the laws that determine copyright will still be in place.
I think the issue at hand here is that we don’t need this bill, we need to restrict copyright back towards the original time lengths. Life+70yrs is beyond ridiculous.
The bias in you article drowned out any rational thought, argument, or opinion you may have made. Copyright, its distant cousin Patents, and the extralegal mirage of them being siamese twins, Intellectual Property, are important topics. And their fates will have profound impacts on society and the world for many decades to come. So please treat the discussion with the respect it deserves, and stop using misleading, highly charged, over the top word choices, and sly slight of hand constructs. I whole heartily support trying to spark actioned interest from your readers, but trying to do so by blinding them to reason and thought via syntactic confusion is dishonest.
The computer internet is a method of stealing peoples writings and designs prior to copyright. To glean what the creative create.
Government and Corporate industry are gatherings of socialistic beings who use creative peoples concepts to their advantage and control.
As a poet I have several books that have seemed to be doing fairly well.(google” Musings in a Liquid Sky”). Walmart, Target, Amazon.com, and many other companies seem to be selling them. I receive no royalties at all. I have no phone in my name, and no address. On my first two books I received a copyright on every poem, but my future work has to go through homeland security to get to the copyright office. Will it actually get there? Will anyones work get to the copyright office? I could never put my work on this computer. It would be stolen.Every program on your computer is a window into your world. Every phone call. Poor guys. Their so fearfull. They will do anything to win, and in the process lose. For you see each of us is the judge of ourselves. Our motive and intent is only known by ourselves. And then we have to look in the mirror again and again. to see what?
The flaw in this whole argument is that artists are afraid of relying on registries. There is no reason a cheap/free non-profit registry could not emerge and have people register their photographs. This could be an authorative database. If your willing to let people share images with attribution (minimum right you have to give away) you can register with many Creative Commons bases registries for free.
The public domain has reached stagnation due to the horrible copyright laws that exist in this countries, even though we were founded as a pirate nation which stole works and designs from overseas and used them in our country in impunity. The most ironic thing is that in this day and age we have some of the strictest copyright laws in the world.
Though I am a US citizen I take a global approach over this. You start by saying you have protection for the lifetime of the author plus 70 years, this is only true in relation to US soil.
http://en.wikipedia.org/wiki/Copyright_law_in_Azerbaijan – copyright here lasts 50 years
Canada – Authors life plus 50 years http://en.wikipedia.org/wiki/Canadian_copyright_law
I’ve shown these you solely show you can’t enforce in a global scale (and we are a global economy) the same copyright enforcements or laws because one country says so and that’s where you live.
The Berne convention you quote from that gives you the right to have copyright without registration originally gave photographic works only 25 years.
How is this not a good thing? This could expand the public domain significantly. There are a lot of old films, photographs, works of art, and even computer software whose creators have disappeared or are otherwise unavailable, and yet their works remain in a kind of copyright limbo. Preserving them is difficult in this state.
This is kind of disappointing. Sites like Slashdot are generally against strict copyright, but now that something comes in to weaken it for the average person, everyone gets up in arms. I guess it’s easy to rail against how unfair corporate copyrights are, but when your own work is affected by reform and you see what you have to give up, it becomes bad.
There was a time when you had to manually register everything you wanted copyrighted, and everything else was in the public domain. We would do very well to return to that system. Give free registrations to people who can prove their work was created before the switchover date. It’s the only fair way to deal with orphaned works.
I work as a professional illustrator and feel strongly that this bill as it is will hurt freelance illustrators and artists. It will, however, benefit corporations such as Microsoft and the Copyright Office. Both of these companies are behind the bill for good reason, it benefits their pockets.
Look at the people working in the field, most all of them are against this bill. Guild after guild of freelance artists are rising up to fight this.
If the intended result is to really preserve Orphan Works for institution and other related use, why not put up an Orphan Works commitee to handle it instead of this vague bill? Works well enough for Canada.
The bill isn’t going to legalize theft; however it is going to put more pressure on independent artists and loopholes will be exploited whenever possible. With so many laws already working in the favor of big business, I don’t see the point in taking more power out of the hands of the people.