The Evils Of H.R. 5889, The Orphan Works Act of 2008

I’d like to urge readers of this blog to take a minute and do a little research on a bill that is currently being re-introduced (in a new, mutant form) in Congress that will directly impact the ability of creative professionals, freelancers in particular, to be properly compensated for their work.

“The Orphan Works Act of 2008″ (H.R. 5889) sounds innocent enough on the surface. It proposes that “orphaned” artwork, work where no copyright holder can be “reasonably located” would be free for use by anyone who wishes to utilize it in any commercial venture. What makes it tricky is the language. What constitutes a “reasonable search” for the work’s creator? Ouija board? Divining rod? Darts at a page from the phone book? It’s already tough for creative professionals to make a living freelancing, giving unscrupulous publishers (or anyone) a loophole to get around paying for artwork will just be another kick in the gut.

Believe it or not, even a small-time hack like myself has had work swiped and used for other’s commercial gain. In most cases, the legal recourse is costlier than any payment you may eventually wrangle, so people get away with it. Giving these creeps a legal excuse, “Gee, I TRIED to find the artist,” is a bad, bad idea.

The bill doesn’t have any impact on existing copyright laws. It just widens the scope of what can be considered “orphaned” artwork. There’s tons of art out there (thanks to the good ol’ internet) whose creators are either long gone or no longer hold rights to the work. Some of it falls into the “public domain” arena. But, more often than not, there’s an artist out there that is getting ripped-off.

So, I’m asking you good people to look into it for yourselves, and if you agree it looks like bad legislation, call or write your representatives. It’s the American Way.

Here’s a link that you might find interesting. Click on the red letters “Orphan Works Bill.” Thanks.

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5 Comments on “The Evils Of H.R. 5889, The Orphan Works Act of 2008”

  1. Jim Says:

    I support this Bill.

    Fair use has been gutted, we can have a private free exchange of information on the internet or we can have copyright laws. There is not room for both.

    I will not sacrifice freedom of speech, privacy and the basic realities of the internet to maintain outdated business models.


  2. So, what are you saying? Any work I do for the internet should be for free? How about print pieces that end up on the internet? Can you use my artwork for your logo without paying me because you found it on the web and don’t have my name or billing address? People have, even when they DO have my billing address. Can you just lift photos from Google and make your own picture book and sell it without paying the photographers?
    Creative professionals are trying to find ways to monetize their web-based work and freelancing has always been dicey, this bill will just make it that much more difficult for artists and writers to earn a living.
    Do you work for free? I didn’t think so.
    I support freedom of speech, blather all you want…but if you use MY words, then you better pay me. As for privacy, whose privacy is being invaded? The thief’s? You use anything I’ve done without my permission and you’ll hear from me. As for outmoded business models, people are making money from the internet. If you’re making money while using something I’ve created, PAY ME. The work you see of mine on the internet is COPYRIGHTED. Either the publisher or I hold the rights. This bill doesn’t change copyright law, it just makes it easier to steal someone else’s creation.
    If you’re just diddling in your parent’s basement making your own comic books, have fun. But if you start selling them, PAY THE ARTIST AND THE WRITER. All too often “fair use” means there’s an artist out there being ripped off. And I don’t like being ripped off. I’ll bet you don’t either.
    Urge your representatives to examine this legislation and close the loopholes that would allow unscrupulous publishers, etc. to make a nominal effort to find the work’s creator and then use it for their own gain when the artist “couldn’t be located.”
    There are tons and tons of art and images out there that fall into the “public domain” arena. Use it all you want. But I promise you, nothing I’ve done is “public domain.”
    If you REALLY want to use an image an artist has created, ask their permission. I’ve given stuff away when asked in a respectful manner. Especially for non-profit usage. That’s all I’m saying. Give the artist control over their own work. Is that so bad?


  3. This explains it better than I can:

    These bills would amend Chapter 5 of Title 17, United States Code, (Copyright law) by adding “§ 514. Limitation on remedies in cases involving orphan works.” This new limitation on remedies will be imposed on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

    The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate by means of a “reasonably diligent search.” The infringer himself will be allowed to determine when he has met this imprecise test. The infringer would be free to ignore the rights of the author and use the work for any purpose, including commercial usage. This is a radical departure from existing international copyright law and conventions, as well as normal business practices.

    These bills will have a disproportionate impact on visual artists because pictures are commonly published without credit lines or because credit lines can be removed by others. This is especially true of art published in the Internet Age. And since unmarked pictures cannot be sourced or dated, works by artists like me – who live and work outside the U.S. – will be just as vulnerable to infringement as the work of American artists.

    Because visual art is so vulnerable to orphaning, there is only one way to match an unmarked image to its author: by relying on image-recognition databases. The Copyright Office has stated that with the passage of these bills, such registries will be “indispensable,” and they have stipulated that the registries must be created in the private sector and run as commercial, for-profit ventures.

    Forcing artists to rely on any form of registry to protect their work is a violation of the Berne Convention for the Protection of Literary and Artistic Works. This law forbids any member country to impose registration on a rights holder as as a condition of protecting his copyright. See Berne. Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality.” But forcing international artists to rely on commercial registries in order to to protect their work from infringement – made legal by a law unique to the United States – is deeply troubling.

    There are many reasons why international law forbids coerced registration. Before such registries can be meaningful, all the billions of images currently protected by copyright must first be entered into them with authorship information intact. That means that millions of pictures from around the world which go unmatched will be orphaned, even if the artists are alive, working and managing their copyrights. This would even be true of images registered in the databases, but which go unmatched because of computer errors.

    There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands – of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.

    Presumably the Copyright Office and Congress expects non U.S. artist like me to register all their past and future art with the new hypothetical U.S. databases, or see my work exposed to commercial infringement under U.S. law.

    These bills will create massive uncertainty in the markets where visual art is bought, sold and licensed. It will do this by voiding entirely the exclusive rights of every visual artist whose work any infringer can lay claim to. Reason: I would be powerless to stop the unauthorized uses of my art, even in cases where I would never, or could never, permit those uses. Besides seeing my work used in objectionable or defamatory ways, this will void existing contracts already in force between me and my clients. This is an attack on the principle of art itself, because my exclusive right of copyright is the only tool I have to assert creative control over my work and to protect its value in the marketplace.

    The U.S. is a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty allows certain “limitations and exceptions” to an artist’s exclusive right of copyright. These are codified as a Three-Step Test:
    “ Member [countries] shall confine limitations and exceptions to exclusive rights to:

    (1) certain special cases

    (2) which do not conflict with a normal exploitation of the work
    (3) and do not unreasonably prejudice the legitimate interests of the rights holder.

    The Orphan Works Bills of 2008 have been written so broadly that their use cannot be confined to true orphaned work. These bills will violate the Berne Copyright Convention and fail the Three-Step Test of TRIPs.

    Any Orphan Works solution should precisely define an orphan work as a copyright no longer managed by a rights holder, and be limited to uses in the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education.


  4. You make mention of international artists being forced to rely on commercial registries in order to to protect their work from infringement – made legal by a law unique to the United States.
    You can rest assured that if this act is passed, It will not be restricted to the United States…The EU is also working on this. It will be Global. There will be birth pains that occur with any change and yes, companies and individuals will make money.
    Be responsible, protect yourself, and take the steps to register your work if you are a serious professional artist.
    Art is big money at this stage in our culture and it is survival of the fittest.
    This act will protect you ultimately.

    (There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands – of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.)….. The cost to have the works digitized and registered would not be beyond a working artists ability. Out of the thousands of “hypothetical” artworks, how many are active pieces and how many are throw aways? It is the artists professional responsibility to be accountable for their work. Take inventory my friend or your work will be orphaned. ( With the current trends in appropriation, one must be on guard. Simple copyrite laws are not enough).


  5. *A side note…
    I am all for appropriation in art, so speaking of thousands of art works:
    By mid 2009 I will have a site posted http://www.orphanedartwork.com
    Posted on this site will be over 20,000 individual (original) hand drawn pen/ink figures that will be free for any person to use for whatever purpose.
    I believe in the evolution of the image through appropriation and am releasing my images for this cause. I will refer to these unregistered images as feral images.
    Samples of the images to be released are on my current web page.

    What I see as the natural progression of the fine arts is a consolidation and categorizing of creative concepts via the web. These concepts would be extracted from a vast pool of the world population and then used as project material on a large scale with input from experts in a variety of the major sciences.
    This process allows the common man a creative outlet that could be realized within a collective scheme. All humans have creative thoughts or even fragments of thoughts that surface at different times and if in the right hands these thoughts could be lucrative.
    There are also common ideas or even concepts that arrive collectively in waves that could be fine tuned or redirected towards a legitimate project.
    When a society fosters creativity on an individual level within a vast network, a vacuum is filled and the product suffers as well as the society.
    Restraint is key to the creative process.
    The ultimate goal in fine art is the discovery of the new. Any art that falls short of this is self indulgent or obsessive or at best therapeutic. With this view in place, it stands to reason that a scientific approach is the ethical/logical route to pursue.
    The proposal is to position a site where any individual at any time can deposit creative information, this information would be collected and stored in a data base as material to be sorted into categories and consolidated.
    The essence of the creative information would be made accessible to a select panel of qualified representatives of the major sciences for review.
    At this point, an aesthetic project could be set into place based on information compiled and then could be split into branch projects and handed off to workers/artists for refinement.
    The showcasing of these grand scale projects could be held on an annual basis.
    The content of these artworks/projects would be substantial and current and thus beneficial to society as well as the individual.
    Participants that submitted ideas/concepts that are used as core material or even substantial supporting material could be included in the production process of the work(s).
    I think the progression of art will eventually surpass the need for such rigid guarding of an image or idea. time will tell


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