News Spotlight

PROPOSED CHANGES to COPYRIGHT LAW
COULD HURT ARTISTS

If you are one of the two million working artists in the United States, then you need to know about the pending legislation that could permanently affect your livelihood.

The bipartisan Orphan Works Act of 2008 was introduced to the House of Representatives by Rep. Howard Berman (D-Calif.) and Rep. Lamar Smith (R-Texas) on April 24. The Shawn Bentley Orphan Works Act of 2008 (named for the late Time Warner lobbyist Shawn Bentley) was simultaneously introduced to the Senate by Sen. Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah). The parallel initiatives will have major implications if passed.

Currently all U.S. citizens have automatic protection of their original artwork without even registering it. Under the Copyright Act of 1976, "copyright…subsists from its creation.” However, the Orphan Works Act wants to change that. The proposed bill would make any unregistered artwork public domain: in other words, it would be unprotected. It could be copied or used for profit by anyone without compensating the artist. This broad legislation applies to any illustration, design, photograph, musical composition or piece of writing, both current and past, whether created domestically or abroad.

PROPOSED COPYRIGHT REGISTRATION REFORM

"Orphan works” is a term that applies to artworks whose creator cannot be traced. Many organizations such as libraries and museums could benefit from the passage of the bill because the orphaned art would become accessible to the larger public. Unfortunately, large corporations and copycats also stand to profit, using the unclaimed art on t-shirts, mugs, posters and in advertising campaigns.

Under the current legislation, an artist's work is automatically protected from the moment of creation, but the artist also has the option of filing a copyright registration. Currently, copyright registration is a simple and inexpensive task. However, the Orphan Works Act would privatize this process, requiring artists to register on digital databases. This would present several problems: The cost would be substantial and the application highly specialized, making registration inaccessible the average artist. The burden would be placed on the artist to make his or her work traceable for all time. In addition, anyone wishing to use the artist’s work would have to first figure out how to locate the privatized registrations, by search terms or keywords or other methods as yet undetermined.

FINANCIAL IMPLICATIONS

Many orphaned works do in fact have “parents.” Under the proposed legislation, if a copyright infringer can prove that he has made a “reasonable search” for the artist, he may claim the artwork as his own and use it for private commercial gain. The proposed law does not specify what constitutes a “reasonable search.” Even Rep. Howard Berman expressed reservations in his opening statements, admitting that the legislation would put many artists at a disadvantage. “There is no collective registry for photographic or illustration information making owner information, in many instances, almost impossible to find.”

If the artist is subsequently located, the infringer is not obligated to share any profits or even to pay the harmed artist’s legal fees. Furthermore, an infringer could legally create a derivative work and register it as her intellectual property without the permission of the original artist.

Potential copycats are currently dissuaded by the threat of statutory damages upwards of $150,000. The proposed legislation would remove that penalty, leaving artists vulnerable. Sen. Berman admitted, “Under this orphan works provision, while the use is still considered infringement, the remedies are so limited that likelihood of recovery, of even reasonable compensation, becomes questionable. The cost of litigation to determine reasonable compensation would often-times far exceed the actual reasonable compensation.”

STOP THE ORPHAN WORKS ACT
If the Orphan Works Act would devastate your livelihood, let your Congressional leaders know.

STAY INFORMED
For the most up-to-date information about the Orphan Works Acts, visit the following sites:

FURTHER READING

Updated, August 2008, Adriane Koenig