Return of the Son of the Orphan Works Act

July 17th, 2015 | Posted in General

Orphan Works cartoon by Nick AndersonCartoon by Nick Anderson, used with permission

After admittedly posting this below from the Illustrator’s Partnership without doing any research into the latest copyright reform proposal, I did said research and a few days later posted this more even-handed take on this issue. Since several people seem intent on linking only to this early post and not to the one where I agree much of what is said here in the IP response is overblown and downright misleading, here’s a link to that later post. The more recent version of the Orphan Works proposal is less awful that previous ones, but it still leave a wide, wide loophole for copyright infringement with very little risk of financial repercussions.

Are you all as sick of hearing about the “Orphan Works Act” and the continuing resurfacing of attacks on the copyrights of artists and other creators as I am? They keep on getting squashed by lawmakers but keep on coming back in another form or with subtle changes. It eventually becomes so repetitive that artists just roll their eyes and ignore it.

That’s the battle plan of the people that want to destroy your ability to earn a living from the work you have created and allow others to earn money from your work instead. Apathy. Keep throwing it at us until we just get tired of swinging the bat, and then when we wake up again we find we’ve already struck out.

Don’t let that happen. These proposed changes to copyright laws are being lobbied for by major internet players that want to be free to catalog and monetize creative works they did not create. Don’t let them. Read this and make your voice heard:

Orphan Works is Back! Immediate Help Needed from ALL Artists by 7/23/15 !

The US Copyright Office wants to hear from artists and others in the art business on how art is being monetized, enforced, and registered under the existing Copyright Act. The information collected from the letters submitted will be used during the Copyright Office purposed five-year pilot program addressing Orphan Works and Mass Digitization. The results from this pilot program will most likely determine what will be included in the new Copyright Act to be sent to Congress for approval. As artists and others in the art industry, we need to tell the Copyright Office how Orphan Works will impact our business if it is incorporated in the new Copyright Act!

Please submit a letter ASAP to the Copyright Office! For information on what to include in the letter and to see an example of a letter, read “Orphan Works – Sample letter to Copyright office” by artist Annie Troe.

DEADLINE to submit letters to the Copyright Office is 7/23/15 !!!

What is Orphan Works?
According to “Copyright Office proposes pilot program for extended collective licensing to address mass digitization” report “Orphan Works are works where the copyright owner cannot be identified or located. As the Copyright Office observes, this compromises the ability of a potential user to seek permission or negotiate licensing terms. The legislation would apply to all categories of copyrighted works as well as to all types of uses and users who engage in a good faith diligent search. The Office concluded that existing features of the current copyright system, such as voluntary and licensing agreements, best practices documents or the fair use doctrine, do not sufficiently address the legal uncertainty of the mass digitization of protected works.”

“The demand for copyright ‘reform’ has come from large Internet firms and legal scholars allied with them. Their business models involve supplying the public with access to other people’s copyrighted work. Their problem has been how to do this legally and without paying artists.” is stated by Brad Holland in “The Return of Orphan Works: The Next Great Copyright Act“.

How Orphan Works will Impact Artists
Brad Holland in “The Return of Orphan Works: The Next Great Copyright Act” states:

“The Next Great Copyright Act” would replace all existing copyright law.
1. It would void our Constitutional right to the exclusive control of our work.
2. It would “privilege” the public’s right to use our work.
3. It would “pressure” you to register your life’s work with commercial registries.
4. It would “orphan” unregistered work.
5. It would make orphaned work available for commercial infringement by “good faith” infringers.
6. It would allow others to alter your work and copyright those “derivative works” in their own names.
7. It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership. It was the teamwork and support of visual artists all over America calling and writing to their congressional leaders that made the difference.

This is the first step in the once again fight to defeat Orphan Works. Please submit a letter ASAP to the Copyright Office!


  1. DadaHyena says:

    Done. Thanks for the heads-up, Tom. This is important for every artist to know.

  2. Marscaleb says:

    so in other words, if no one can figure out who owns the copyright to something, it no longer has copyright.
    How is that a bad thing? Geez, just keep track of your stuff.

    • Tom Richmond says:

      Why don’t you read a little about the implications of this law, how the burden is placed on the creators to somehow “just keep track of your stuff”, and then get back to me on why this is not a bad thing. Here’s a link:

      We’ll all wait….

    • derrick white says:

      This law has two major problems with it:

      first, the burden of proof is placed on the artist, not those who wish to make use of it. This is a major problem. Getting a work declared orphaned should be case by case, not by exclusion. To see what this would cause, look up the term “patent troll”. Artists seek to keep patent trolling out of their industry.

      Second, this law takes the concept of ‘small government’ to ‘no government’. All registries would be private, and as far as I could tell, have little regulation. I’m a small government supporter (I actually think we should get rid of the post office), but property law (which this is a form of) is squarely in the government’s rightful court (as in we have a right to see the government enforce it). If you make it private it WILL get abused.

  3. Sent them a letter saying I’m against it. Writing a letter about these things is not my specialty, but hopefully it’s serviceable.

  4. A.H. says:

    I live in Europe. How does this affect me and my art?

  5. Herb Finn says:

    We NEED is for the sake of the 1000’s and 1000’s of Abandoned Orphaned Films,images, books and manuscripts that are slowly deteriorating and needing to be rescued and used again.

    This fear that the minute this law takes effect, everyone is going to lose their rights is just silly. People will need to adapt to the new paradigm Before the law changed a couple of decades ago you HAD to register for protection – all you young people are crying when all they are doing is putting some things back to the way they were.

    • Tom Richmond says:

      That’s crap, and is the rhetoric the Orphan Works supporters keep using to justify a very transparent attempt to allow private institutions to gather and use any image they feel like using, and only have to say “we tried to find you” if caught, no legal repercussions. Nothing in the current copyright laws prevent the archiving and saving of works of art where the creator is unknown. It only prevents anyone from using those works of art for commercial gain. But, by all means Herb lets go back to the bad old days with copyright. Let’s re-institute segregation and get rid of that newfangled “women’s voting” thing while were at it. The kids these days just have it too easy. AND GET OFF MY LAWN!

      • Brodie says:

        “Nothing in the current copyright laws prevent the archiving and saving of works of art where the creator is unknown. It only prevents anyone from using those works of art for commercial gain.”

        This is absolutely false. Respectfully, you seem to know very little about actual copyright law, and it may be worth your time to invest in specific education on the subject before continuing to rabble rouse about topics you clearly do now understand.

        • Tom Richmond says:

          Look it up. There are exceptions for libraries and archivists to copy works for the purpose of preservation, so long as it is for non-commercial purposes and available for the public or private researchers to access. It’s called Section 108. . Section 107 i.e. “Fair Use” also always for the reproduction of copyrighted material for educational purposes, which can cover just about any art, film or writing.

          Before you come on someone’s personal blog to lecture them on their inadequacies, you had better know what you are talking about. Thanks for playing.

    • Gage Vance Johnson says:

      Having to register you’re art in this way is just going ruin or complicate the livelihoods of millions. Art is one of those things that doesn’t need to be regulated by our government, even if if was in the past. That’s my two cents anyway. I don’t wanna see the death of the individual artist.

  6. The Art Bond says:

    Hello, we’ve translated your post to Spanish:

    We are gathering signatures to stop this new law: we’ll send them to the US Copyright Office. We hope that it helps!

  7. Wiki

    An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes only originator or rightsholder name(s) are known, yet contact is stymied by the exhaustive unavailability of sufficient further details.[1] A work can become orphaned through rightsholders being unaware of their holding, or by their demise (e.g. deceased persons or defunct companies) and establishing inheritance has proved impracticable.[2] In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work.

    U.S. Copyright Office

    The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.

    During its review, the Office requested comments and held public roundtables in Washington, D.C., on March 10–11, 2014, which were videotaped and transcribed. During these roundtables, the Office heard a variety of viewpoints on a wide range of issues impacting orphan works and mass digitization efforts.

    The Office released its final analysis and recommendation entitled Orphan Works and Mass Digitization: A Report of the Register of Copyrights in June 2015.

  8. Lee says:

    I was wondering if there’s anything people who aren’t US residents can do. I can tell this is affect everyone, not only US citizens.

  9. Rob Joseph says:

    Well done and thanks for posting this article, Tom – be great to see updates. Going to be sharing it to sites that have photographers who just seem to keep posting those un-watermarked, high resolution pics.

  10. Matt says:

    In 2006, I found some of my artwork being used on a couple of products. I had not signed away any of my rights to the image, and I had not been paid for the use of my work. When I delved deeper into the situation, I found this company had already used my artwork 3 times, and had plans to use it on another 17 separate products (the thumbnails of the soon to be released products were up on the company’s website). When I contacted the company and spoke to their in-house attorney, he apologized and said they had tried to contact me but couldn’t find me, so they used the artwork anyway. This was my introduction to the Orphan Works Act. Though it was still a bill being juggled in Congress, those in the industry were already counting on the Act to pass. I spoke to a peer and he told me that it was just an honest mistake and I should forget about it, but before I had a chance to form a response to the company that had used my artwork without permission, I received a message from another company in New Zealand. They wanted to use the same artwork for their version of the same product in their region. When I asked how they had found me (since I was so obviously hard to find), they told me that the original offending company had given them my name and contact information months earlier. In other words, they knew who I was and how to find me all along. I ended up suing the company; luckily I was able to secure pro bono representation (the first lawyer I approached asked for a $35,000 retainer which he expected to burn through in the first few weeks). We settled out of court, and my image was not used on the product.

    So what’s the problem here? The term “diligent search” isn’t defined; a company can say they looked for you, and it is up to a judge to decide. After a company is caught using your artwork claiming it as Orphaned, under previous iterations of the Orphan Works Act, they would have to pay you – not actual or punitive damages, not even the going rate, but whatever amount they felt was fair. In the meantime, you have no say how your work was used (mine was used on material that was trying to reach a young adult audience – but the subject matter included pedophilia, female castration, and the elevation of Satan to hero status. It wasn’t exactly the kind of stuff with which I wanted my work associated).

    Originally the Orphan Works Act had some good ideas. Unfortunately, someone saw the profits to be made on the backs of artists, and started messing with the original language until it has developed into the bills that went before eCongress.

    I agree in making usage allowances for educational entities, and, to a lesser degree, non-profit organizations. I also think that in our digital age there should be a searchable pictorial archive where people can look up your copyright status (though I don’t think it should be administered by a third party, for-profit group). Registration should be kept cheap, with an interface that allowed easy uploads of artists’ works. I don’t think this should be retroactive.

    If a company cannot find the owner of the copyright, then they shouldn’t use it. Period. There are billions of artworks out there, seek out an artwork whose owner you can identify. If you can’t find a work that fits your need, then hire an artist to create a new image to your specifications. We get paid terribly anyway. A couple of thousand dollars can buy a good custom work and the rights to go with it. If your company can’t afford a couple of thousand dollars, then it’s not ready to produce the product. Paying the artist is part of the cost of doing business.

    What the talk around this Act is about is enabling companies to use someone’s work without fear of a major lawsuit. After all, there is a limited window in which they are liable anyway, and we have no way to police their actions as individual artists. If they make something with our artwork on it, and we don’t catch them in time, they got it for free. And if we do catch them, they can say they always intended to pay us but couldn’t find find us. Here’s 30 bucks.

    • Tom Richmond says:

      “If a company cannot find the owner of the copyright, then they shouldn’t use it. Period.”

      My thoughts exactly.

    • Darrell Goza says:

      Matt, I’d love to use your response in its entirety on my FB page as a responsive answer to why this possible legislation is positively ‘bad’ for creators. i concur and absolutely agree with your viewpoint and it speaks to the heart of the issue of why this iteration of orphan works MUST not win the day! I’d also like to keep your name connected with this response (even though I wish I’d have said it so eloquently). As Tom states: ‘My thoughts exactly!’

  11. Matt’s comments from last week were good and thoughtful. However, before you begin suggesting it might be ok for educational entities and non-profits to declare orphans and use works without payment, consider the several thousand self-employed professional medical illustrators throughout the country, who like myself, do much of their work for scientific educational entities and non-profit hospitals and medical centers (ex. think Mayo Clinic and Cleveland Clinic). A significant part of my business involves relicensing my medical artwork to these types of billion dollar “non-profit” (on paper) corporations. Not only would this legislation potentially gut this aspect of my business, (and that of hundreds of other medical illustrators), it would allow these types of infringers to make derivatives from my work and then copyright those derivatives in their own name, effectively stealing my work!

    This proposed legislation is “bad to the bone” for every creator in this country.

    Bill Westwood, MS, CMI
    Board Certified Medical Illustrator


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