Orphan works legislation introduced

This is an urgent message to anyone who creates, or has ever created anything visual... like artwork of any kind, illustration, photographs, sculpture, film, video, etc. There were "Orphan Works" bills introduced to the US Senate and House of Representatives on April 25, 2008 which if passed would radically affect existing US copyright laws. These bills are of great concern to many creative organizations, and we have been urged to spread the word, educate ourselves about the ramifications of this new legislation and take action.

After conducting my own research, I am convinced these bills create many more problems than they are attempting to solve, and would have a severe impact on our copyrights. Our works could be potentially used legally without our knowledge or permission unless they are "registered" with searchable databases. However the technical capability to store and search visual data doesn't yet exist, nor does any kind of visual registry. I personally have created probably thousands of pieces which I would have to find, catalog, scan and submit if I want to protect them from potential unauthorized usage, even the ones I have previously registered with the US Copyright Office. Also, penalties for improper usage if the creator of an image is not located would be virtually eliminated, making any image ripe for exploitation with little risk to the user.

Please, I urge you to conduct your own research on this issue, and act accordingly. Here are some links to get you started...

Illustrators Partnership of America resource page

Illustration Friday blog

Library of Congress - search for "Orphan Works" and you can read the exact wording and a summary of the bills.

Google search

And in case you are interested (and still reading), here is an excerpt from the letters I wrote to my representatives in Washington. I struggled with how I wanted to express my position, and I hope it has some impact on the outcome:

****************************************

In my opinion, this legislation would have an immense and negative impact on myself and those in the visual arts industry in two primary ways:

First, the direct impact would be to unfairly shift the burden of copyright registration and enforcement onto the artist. Currently an artist like me is automatically protected from any usage of an image unless they give consent. This new legislation would create a loophole by which any image could potentially be used without consent. Each individual image would be protected only if it is “registered,” even though a reliable vehicle for that registration doesn’t yet exist. I have created thousands of images for which I hold copyright, and it would be an overwhelming task for me to find, catalog, scan and register each of those images, and the cost would be a tremendous hardship. But without registration, it would be very difficult to connect me with many of my existing images, most of which were published uncredited, because illustrations commissioned for commercial usage generally do not include the artist’s name. If I overlooked or chose not to register any of my artworks for whatever reason, they would potentially be labeled “orphaned” and then legally used or sold without my knowledge or protection. There is also a danger that existing images could actually be registered by someone other than the creator, resulting in a huge quagmire of proof and documentation for the artist and the registry.

The second, and broader consequence of this legislation, would be to diminish the means by which commercial artists like myself earn our living, by increasingly reducing the need for new art to be commissioned. Entities that now have access to vast numbers of these orphaned works would make them available as “stock” or “clip” art. If an artist chances to see the use of one of his unregistered images, he would only be due a “fee” for that usage. No legal penalties for unauthorized use eliminates the risk of loss, and this would make the “mining” of orphaned images an attractive and profitable business model. The fact that the victims are generally isolated freelance artists makes it even less of a potential risk for these entities. We should be protecting artists’ creations instead of providing the opportunity to exploit them. The bottom line is that if someone wants to use an image they don’t own the rights to, or have permission to use, they shouldn’t be able to use it. Its unfair to whoever rightfully owns the copyright regardless of their situation, and is contrary to the spirit of creative ownership.

I understand the reasoning behind the development of this legislation, and I know that eventually there will be a way to solve the issues that it tries to address, but this bill does not successfully protect the rights of those who create images.

****************************

And that's it. Sorry to take over my normally cheery blog with this doomsday talk, but there is a lot of concern about this, and it merits some attention from those of us who would experience the negative consequences. Thanks for listening.

Cheers,

Jenny

by the way... the illustration above... the copyright symbol with a slash through it... doesn't mean I am opposed to copyrights, but that I am concerned this bill threatens the spirit of creative copyright we all take for granted. I just wanted to make that clear.

Comments

[ellen kelley]

Please don't apologize. I am not an artist, nor do I create things...writing, paintings, crafts..etc. that people would want to take from me and in turn make a profit from. But, you do and so do many here in this wonderful space. This is your "life's blood", your joy and you share so much with others.
It is a HUGE issue if you are an artist. I will put my word in too, if that's possible, to support you and those who create such unique expressions of their own art and creativity.
I can only come up with the immature words, "It's not o.k."

[ellen kelley]

Please don't apologize. I am not an artist, nor do I create things...writing, paintings, crafts..etc. that people would want to take from me and in turn make a profit from. But, you do and so do many here in this wonderful space. This is your "life's blood", your joy and you share so much with others.
It is a HUGE issue if you are an artist. I will put my word in too, if that's possible, to support you and those who create such unique expressions of their own art and creativity.
I can only come up with the immature words, "It's not o.k."

[jeanetta]

thanks for this post. i have been reading your blog for quite a while but am unsure if i have ever commented.
i have some designs i am interested in protecting but am unsure of how to go about it. and now even worried more about said protection.
how does one protect every drawing, every design, every photograph? its all very confusing and i know you might not have the answers or want to go into a 12 steps process.
am i protected if i just say that things are copyrighted like i see on many blogs out there? i shudder when i think if the cost incurred to protect everything. i just wish there was a simple straight forward explanation of everything.

[amanda]

this is such an important post - thank you! I often get lost in the language of these things, but you just explained it so clearly for all of us. Thank you, jenny!

[blair]

thanks for bringing this out for us all to know about! I had no idea, and as Amanda said, you've explained it well, thank you Jenny!

[Leanne]

Hi Jenny, thanks for writing this. I'm in deadlines myself and other than commenting at PBAA I haven't done much. Thanks for bringing up that others could register our work... I hadn't thought of that! It would be like when one goes to register onesownname.com and discovers someone has already bought it up. My comic is called "Liliane" and someone has bought up that site name and if you go to http://liliane.com/ you will find someone has "parked it" and is selling it for $1250 (domains usually cost only $25 a year at a registry)... How would we prove that the work was ours, when the offender who has stolen it has also registered it as their own? egads! Horrible thought! And as you say, we have produced thousands of works. For Ripley's alone, I did 70 images per book, 15 books... if it was only $1 per image to register, I have over 90 trade books, and hundreds of edu images. Sigh. thanks again for posting this publicly.

[Jennifer]

Thank you for the info. This is really scary but I suppose it's always better to educate oneself!

I posted on my blog about this, with a link to your post.
http://thefabledneedle.blogspot.com/2008/04/oh-crap-as-if-copyrights-werent-touchy.html

[Sue]

Let me get this straight - our government needs to deal with the economy, the declining US Dollar, the price of oil, the war in Iraq, the immigration issue, education, and the mortgage crisis. And they introduce a bill like this? Congress and the Senate are completely out of control.

[Mary]

Thank you for writing about this. I'm definitely going to do some more reading about it, but your overview really makes it clear that this would adversely affect the creativity community in so many ways. Just the sheer cost of registering and copyrighting ones work could be prohibitively expensive, depending on portfolio size. If anything, legislation should do more to protect artists' rights regarding copyrights, not burden them with red tape and legalese.

[muralimanohar]

This is so sick..I can't believe it is even thought of. :(

[Tine]

Very very important post! I'm studying the european laws on immaterial rights, and I can only say, that by comparison....this is BAD!

[Lisa in Barrie Ontario]

I don't know much about copyrights, but from reading this I keep coming up with the same thought; isn't this backwards?

Also, in regard to what Leanne said:
"My comic is called "Liliane" and someone has bought up that site name and if you go to http://liliane.com/ you will find someone has "parked it" and is selling it for $1250 (domains usually cost only $25 a year at a registry)..."
I had heard something similar to this before (in Canada) but I thought that they were maybe mistaken! Where are the laws protecting domains and policing these "scalpers" .... (which is illigal at sporting events or concerts!)

[gena]

I'm not the official expert of copyrights, but I did attend a conference a few years ago and did extensive research. We really don't need to panic. I think these are being put into force especially for our protection and I am so grateful. At one point I had designed so much literature and programs about skin care, ideas, etc. I worked with the Small Business Development Center in my area, which was a wealth of information and I learned much about patenting and copyrighting and get asked about it a lot.

Here's the dirt: go to uspto.gov and surf the website.

And start compiling whatever you'd like to copyright. You can clump it all together or you can do them separately. I personally believe in the all at once and all in one fee method. You can send a package with one page or a thousand pages and the copyright fee is the same: $30 (at least the last time I checked.)

Then do the same for international copyrighting. Unfortunately, I'm not the expert on that but have done business with a few US companies that have had to change their names because there was a similar Australian business with the same name who had done the intl. copyright first. It unfortunately is part of doing business. It's really hard work that pays off in the end. Get help if you need to.

I really dig your work and I understand the concern. This is information I learned a few years ago and I believe is still in tact. I hope I didn't overshoot the issue or downplay its importance, because believe me I get it. We all need to protect our work. It's really disappointing to read blogposts where an artist learns that her exact images and work have been duplicated overseas to someone else's credit. We owe it to ourselves to do our due diligence. Someone please correct me if I'm wrong and if I've got a shoe hanging out of my mouth, but this is what I know currently.

[gena]

Okay, now that I've had some coffee I'm tasting a bit of my left cowgirl boot. It's obviously not about the work you have control over, it's about things that you've done in the past that you may have lost track of. I sounded like somewhat of a jack*ss and I'm really sorry. The Orphan bill will definitely create problems that we clearly don't need.

So perhaps my comment was better suited to those who want to learn a bit about copyrighting.

Thank you for this post, for I am now at least a little better informed.

[jenny b harris]

Hi Gena, this is Jenny. I think I need to respond to your comment here so others can read it, too.

Your information was correct a few years ago but this is new legislation that changes the copyright landscape considerably. Like you, I've been relying on existing copyright laws, registering my work with the US Copyright Office, etc. and I assumed my work was as safe as I could make it. But this new legislation changes the rules, and people who are much smarter than me are very concerned. All I'm asking is people conduct their own research into this NEW legislation (and not the similar bill from 2006) and decide for themselves.

Also, thanks for sharing the info about bulk registering images with the US Copyright Office. If the bills do not pass, that is definitely worth the effort. However, if the law does change, the images registered will not be protected unless they are also entered into the visually searchable registry the bill expects to be created someday.

The bill creators may mean well, but I think they are turning a blind eye to some serious problems the changes would incur by creating a loophole in the copyright protection we have now.

[Dawn]

Is there a petition going around to sign. I would definitely be willing to sign it. Thanks for making it clearer to understand!

[Mr. Icon]

Well, I think you misunderstand the main premise of the law. The trouble is that nothing has entered public domain since 1930s, when Mickey Mouse first appeared on the screen. Disney has done everything in their power to make sure that their copyright never expires -- but as a side-effect this means that all the pictures taken since 1930s, whose authors are long dead, and whose heirs can no longer be found, are not available for reprint or even for archiving. Currently, the law states that anyone publishing copyrighted materials without a release is liable for a $150,000 fine *per incident*.

This means that myriads of works, including amateur pictures whose authors are dead, can never be republished as long as Disney is around, because there's nobody around to sign a release form for them. This creates a sort of a black hole where these works have gone to, and many of them will never see publication again, as long as we have current copyright laws.

Now, the "orphaned works" legislature -- which is very far from being made law -- is supposed to amend that. Everything is still copyrighted as soon as you publish it, so there is no need for the alarmist rhetoric claiming that suddenly you have to register everything in order to copyright it. However, this law aims to make sure that, if 30 years later someone comes across your images and wants to publish it, and you are nowhere to be found, that they can do that without worrying that you or your heirs will show up and ask for hundreds of thousand dollars simply because your pictures were published in a 2040 book about the turn of the century America. Moreover, even if your heirs do show up, they can still request a "reasonable payment" for these works, so it's not like your works are forever out of your ownership. As long as you can prove that you own them, anything defined as an "orphaned work" will come back to your name.

Of course, there are still lots of things that are left to be settled. For example, what is "due diligence" -- how can it be quantified. At which point can a work be considered an "orphaned work?" But, the important thing to remember here is that people are trying to make sure that we don't lose our historical records and our heritage to rot in storage simply because everyone is too afraid to publish it.

The "orphaned works" legislation is on the side of free culture and freedom of press. It's a *good* move, and is in no way aimed at taking away your rights as a copyright owner.

See this good article in New York Times:
http://www.nytimes.com/2007/05/31/business/31scene.html?ex=1338264000&en=6d008c0f5e0fd16e&ei=5124&partner=permalink&exprod=permalink

-K

[gena]

Thanks, Jenny and Mr. Icon for this great new information. This has been really interesting and we can all benefit from it. I am inspired to do more poking around and contact folks in the know in my area. Thank you Mr. Icon for the link to the article. I'm noticing the date on the link which really tells me how out of date I am.

Best regards,
Gena

[Linnea]

Thanks for the information provided in this post. I had no idea... I know your post will have an impact on your readers. Your letter to Washington was powerful, logical, and it read convincingly, I hope it will go far and reach the right hands.

[dawn]

I just found your blog via the fabled needle, and I love it. I appreciate your research and posting on the copyright issue. This is one of the nicest looking blogs on the net. I will be back for sure. Also wanted to say that you make fabulous things!

[Dawn N.]

Hi, Jenny,
Thanks so much for posting about this. As an aspiring quilt designer, it's definitely something that I'll be looking into and writing to my congressmen about. I always thought that the current law was pretty clear; if it's made after 1963, it's covered for the life of the author plus 90 years. Pretty straight-forward. Just about everything created since then is copyrighted, no need for research until about 2063. I've also been creating tags and such with works in the public domain (so I don't infringe on someone else's copyright) and I'd like to clarify something for readers that also like to look at the comments. There was a period from 1923-1963 when works created had to be registered 28 years after the publication/creation date. Unfortunately, a great deal of works are now in the public domain from that period due to companies going out of business or, probably, individuals that did not know that requirement. So, for all your readers out there, your old family photos that do not have a registration or watermark are most likely in the "public domain" and I would advise making an archive asap. I'm not saying start copying everything from this period and start selling it as there are many that were registered; you really have to do the research on each individual piece. Copyright.gov and Stanford have records of copyright renewal records as well as other independent sites attempting to create these record online, independent of the government. I found a lot of info with a simple search of "how do I tell if works are in public domain". It explains a lot.

Anyway, sorry it's so long, but I wanted to let you, and others, know a better explanation about copyrights for older works. And, thanks so very much for informing us all about this extremely important change in legislation.

[kitschen pink]

good grief are they nuts?! surely this is the big boys in suits having a laugh - I notice the post was done in April - do you have April Fool's in America. that's the only thing I can think of to explain this nonsense! I'm guessing if this went ahead it would have global impact! A country either respects creators or it does not. Already there are huge issues with Eastern cultural differences on ownership of ideas and designs. (I'm just cruising your archive because I can get to know your blog even when you're not around - how cool is that!) Hope you're doing ok. t.xx