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

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:

Wikipedia – Design Piracy Prohibition Act

Forever 21: Knocking it Off?

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

Written by Autumn Wiggins

This 2008 interview pretty much sums it up:

1. How would you describe yourself?
An oddly situated performer of thought experiments

2. Do you have any anecdotes about your work (how you got started, frustrating moments, or funny stories)?
At this year's Maker Faire in San Mateo, I gave a presentation on how the trend of green crafting can ultimately address the problem of consumption and waste. Dale Dougherty,the publisher of Make and Craft, later had a gift delivered to me, a staple bound book of poetry: Music Like Dirt by Frank Bidart. This is the last thing one would expect to take home from an event so focused on renegade technology. To my surprise, it was an existential reflection on the human need to make things that I now find myself going back to whenever I need some inspiration to look beyond the materials and processes of crafting.

3. What kinds of things do you do for fun?
In my spare time I enjoy amateur astronomy, outdoor adventures, collecting domain names, and hanging out at coffee shops.

4. What interesting projects are you working on right now?
I'm working to organize community involvement in upcycling, and have a few top-secret website projects up my sleeves!

5. Where do you live? Kids, pets, spouse, occupation?
O'Fallon, IL, a suburb (and I mean a totally typical suburb) of St. Louis, MO. Rather than moving to the more culture friendly urban environment, I am staying put and annoying the heck out of Wal-Mart by throwing a massive indie craft show(Strange Folk) in their backyard. I have a husband, Doug, and two sons: a 7 year old mad scientist named Jack, and 6 year old Max, who we think is an aspiring tattoo artist since he's so fond of drawing all over himself with markers. To pay the bills, I do freelance writing, mural painting, and website design, sell my handmade crafts, teach art classes for kids, and work part -time at a local coffee shop.

6. What new idea (in or outside of your field) has excited you most recently?
The concept known as "Cradle-to-Cradle" is a blueprint for sustainability that states everything we manufacture should be either biodegrable, infinitely recyclable, or intended to be upcycled. This is the basis for many of my ideas of how the crafting community can be more widely involved in solving the environmental crisis.

7. What is your favorite food/color/tool?
granola/green/sewing machine!


Leave a Reply
  1. 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.

  2. 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.

  3. 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.

  4. 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,, 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?

  5. 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. – copyright here lasts 50 years

    Canada – Authors life plus 50 years

    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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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 That is a fantastic thing.

  12. 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.

  13. 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?
    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?

  14. 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.

  15. 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.

  16. Matt,

    China ratified the Berne Convention along with many many other countries:

    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.

  17. 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.

  18. 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.

  19. 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.

  20. 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.

  21. 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.

  22. 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.

  23. 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

    “…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.”

  24. 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.

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Creativity 350

The Shawn Bentley Orphan Works Act: Advocacy Tips for Crafters