Here We Go Again: The Orphan Works Bill

June 18th, 2009 | Posted in News

Orphan Works cartoon by Nick Anderson
Cartoon by Nick Anderson, Used with Permission

I heard a story from one of the cartoonists I hung about with in Colombia last week that I think sums up much of what is wrong with the Orphan Works bill. The cartoonist’s name was Francisco “Paco” Pincay, and he was from Ecuador. He was telling me about how much trouble a new law that had been passed in Ecuador was causing. He said in an apparent effort to help clear up a clogged court system in his country, the president and his administration passed a law setting a $600 limit on prosecutable theft. He illustrated how the law worked like this:

Say you are walking along in Ecuador and a guy grabs your brand new digital camera and runs off down the street with it. Say he happens to be caught by a policeman down the block, and is brought back to you. If the value of your camera is less than $600, the thief is only required to give it back to you, and then he can go on his way. No arrest, no prosecution… he just walks away scott free.

Of course the government got the result they wanted… fewer court cases for petty crime.¬¨‚Ć The other result was an huge explosion of those petty crimes. Why not snatch cameras all day long? The worst that could happen is you have to give it back. The best is you get away with it. No risk.

The orphan works bill is just like that. It’s got a noble idea behind it, allowing for the preservation of deteriorating creative works like pictures, illustrations, writing, films, etc where the creators are unknown and cannot be located. However like the Ecuadorian law the orphan work’s desired result is achieved but the price is allowing unencumbered use of creative works commercially with no fear of repercussions other than being forced to pay a “fair rate” for the use of the work IF the user is caught. Why not take the risk if you are a publisher or a webmaster, when the worst that can happen is you pay what you’d have had to in the first place? Your punishment if caught stealing is to “give back the camera”, just so long as you show you made a “reasonable effort” to find the copyright holder.

From The Illustrator’s Partnership:

Orphan Works: Back Again


In Orphan Works Land, no news has been good news, but that’s about to change:

US Copyright Register Marybeth Peters told Intellectual Property Watch that orphan works legislation is expected to be introduced within the next 10 days. It is her understanding there may still be some issues in the House version to be resolved, and there are some stakeholders – such as illustrators and other artists – “who are probably going to lobby pretty hard against it.”

Peters said this issue is important to her, and the fact it came so close to passing last year is almost bittersweet. “What I hope it isn’t … is it’s one magic moment you get” to finally get it passed, then it doesn’t happen, she said.

We don’t mean to disparage the Register’s comments. She’s had a long and distinguished career at the Copyright Office. But her statement deserves a reality check. Illustrators are not opposed to an orphan works bill. We’re opposed to this bill.

We’re opposed because its scope far exceeds the needs of responsible orphan works legislation.

Moreover, illustrators and artists are not the only stakeholders who oppose it. At last count, more than 83 creators organizations are on record against it, representing artists, photographers, writers, songwriters, musicians and countless small businesses.

Last year, we proposed amendments to the Orphan Works Act that would have made it a true orphan works bill. The amendments were drafted by the attorney who was chief legal counsel to the House Judiciary Committee in drafting the 1976 Copyright Act. The amendments were co-sponsored by the Artists Rights Society and the Advertising Photographers of America. They can be found here:

On July 11, 2008, we submitted those amendments to both the House and Senate Judiciary Committees. In our preamble we wrote this:

As rights holders, we can summarize our hopes for the Orphan Works Act simply: to see that it becomes a true orphan works bill, with no unnecessary spillover effect to damage the everyday commercial activities of working artists. We’d be happy to work with Congress to accomplish this. No legislation regarding the use of private property should be considered without the active participation of those whose property is at stake.

Last year more than 180,000 letters were sent to lawmakers from our Capwiz site. These letters did not come from obstructionists. They came from citizens whose property is at stake. They may lack the resources of big Internet companies and the access of high powered lobbyists, but last year they spoke. They asked only one thing: that Congress respect their personal property rights and amend this bill to make it nothing more than what its sponsors say they want it to be – a bill that would affect only true orphaned work.

We urge this Congress to listen.

– Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership

All the naysayers will now come forth trying to pretend this bill is about saving Great Grandma and Grandpa’s wedding pictures from being lost to decay, or preserving great works of art that are in similar danger of being lost without being copied for posterity…. PLEASE.

Nobody would be opposed to the archiving, copying and preservation of any creative works just because the original creator cannot be contacted for permission to do so. Those are TRUE orphaned works, and all 83 of those creators organizations in the link above would be happy to agree to a way to keep their loss from happening, as long as it doesn’t trample the rights of creators who are not missing in action.

As the IP says, we are not opposed to an orphan works bill… we are opposed to THIS bill, which is designed both to line the pockets of companies like Google who want to charge us to register all of our work in some giant database so it isn’t considered “orphaned” and to allow anybody to use our creative works without paying us with no fear of litigation of payment of damages.

The desired result of preserving deteriorating works can be achieved with a simple changing of the Fair Use exemption to copyright. The Orphan Works Act is akin to using a backhoe to plant a flower… you get a hole dug but destroy the garden in the process.

Do your part to let your congressional representatives know this law should not be passed.


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New profile pic courtesy of my self-caricature for the Scott Maiko penned article “Gotcha! Mug Shots of Common (but Despicable) Criminals” from MAD 550

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