Combating Orphan Works

May 10th, 2008 | Posted in General

I’ve written a lot about the latest incarnation of the misguided Orphan Works Act, so rather than rehash any of it I’ll just point to this post for the facts and serious issues the bill raises to creative professionals. Briefly, my stand on the bill is that it has serious implications for those who make a living creating new creative works for publication and commercial use, and that the supposed purpose of the bill (to preserve work that is truly “orphaned” so it is not lost in time) would be better served with new definitions and laws for “fair use” of a copyrighted work.

I was talking with illustrator great C.F. Payne about the bill the other day, and he brought up another problem with the bill I had not considered. Chris is a tireless advocate for professional illustrators and their rights, and he knows of what he speaks. He mentioned a potential serious issue wherein an artist may find himself being sued for “infringing: on his own artwork! H.R. 5889 contains the following clause concerning “derivative works”:

”(f) COPYRIGHT FOR DERIVATIVE WORKS AND COMPILATIONS.?¬¢‚Äö?ᬮ”Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.”.

What this means: Anyone who goes through the process of declaring a work “orphaned” (i.e. they could not find the author via a “reasonably diligent search”) can then use the artwork as a basis for a “new work” known as a derivative work. They can then copyright the new work and sell it to whomever they like. Even IF the artist comes forward and says they were the original creators of the work the new work was derived from, they are powerless to dissolve the copyright of the derivative work’s creator.

Here’s a scenario: An unscrupulous stock art company employs a dozen researchers who scour old magazines, publications and the internet looking for work without immediate identification. They go through the process of finding it “orphaned” (a process that is still vague and ambiguous). They then hire a group of artists to create derivative works in the same style, changing it just enough to be legally called “derivative” (only 10% according to precedent). Now they copyright it and have a large body of stock illustration that they sell to publishers at cheap prices, damaging creator’s livelihoods and dampening the creation of new works. Under this scenario, I could sell someone the rights to use my caricature of Snoop Dogg for an article and find myself at the wrong end of a lawsuit by a stock house claiming I infringed on their copyright, as they have a rip off version of that same caricature done by a copycat artist and copyrighted in their stock art collection. As long as they could show they performed the steps to find that caricature orphaned, I can do nothing under the language of this bill even if it’s proven it was my work used as the basis of their derivative. I can open up a magazine at any time to see that rip off of my caricature staring back at me and can do nothing about it.

The bills are now introduced and will be a part of the legislative session. Below is a link to take easy action to let your US congress representatives and senators know you oppose the bills and raise the concerns needed. I’m not a big fan of form letter communication, but if you don’t have the time or inclination to write an actual letter to your elected officials, then this is better than nothing.

This link will take you to a selection of form letters from which you can choose. By entering your address it will be forwarded automatically to the appropriate congressional and senate representatives. Do so today and add your voice to those who are justifiably concerned about this serious issue.


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