Call to ACTION – Orphan Works Bill – Updated 5-21-08

I got this email from artist Michael Jantze (creator of “the Norm”) with a call to action on the possible changes to the copyright laws that will affect creative folks both professional as well as hobbiest.

Here’s a life and death issue for all of us. The Orphan Works Bill in front of congress…meant to strip us of our copyright and trademark rights as artists. Read more here and use the forms to send letters to your senators and representatives.

Michael Jantze
Jantze Studios

The bill would make much of our work “Orphans” unless we registered them with a for-profit company. I urge you to read the information at the link and sign a letter to our congress people. This is going to be bad, I believe, if it passes.

To find out some more about the bill including a podcast, visit here.


Thanks to artist Colleen Doran we have some more information. I think this sums up both some pros and cons of the bill. The idea of having a bill to deal with Orphan Works is not the issue as much as some of the other items that accompany the bill. This is from the folks at the Graphic Artist Guild who are focused on protecting the work of professional artist.

Press release, in its entirety.

Graphic Artists Guild Opposes Senate Orphan Works Bill

NEW YORK – The Graphic Artists Guild’s Board of Directors voted unanimously Friday to oppose the Senate’s passage of the Shawn Bentley Orphan Works Act of 2008 that significantly alters copyright protection rights. The Guild says the bill approved by the Senate Judiciary Committee is incomplete legislation, insufficient protection and indifferent to American workers.

The Guild has been advising members of Congress about the “orphan works” issue since 2006 and participated in discussions with the Copyright Office since 2005. The Guild withheld comment about the Senate bill until work was finalized. That position changed when the completed version was announced only hours before the Senate committee vote last Thursday.

“This is a disappointment,” Guild President John P. Schmelzer said, “We’re encouraging creative people from all industries to contact their senators to express their disapproval before the full Senate vote later this year.”

Orphan works legislation is intended to limit monetary rewards and injunctive relief to stop further infringement of copyrighted works for which the user has been unable to determine the identity of the copyright owner. The Guild and the artist community are concerned that the manner in which the limitations are imposed could produce an incentive for theft in the highly competitive industry that contributes $13 billion a year to the U.S. economy.

Guild leadership was pleased that lawmakers agreed with their recommendation to exclude artwork used on “useful items” such as textiles or wallpaper from being subject to the bill, but they say the measure otherwise has a long way to go before sufficiently protecting copyright owners.

The bill is incomplete because three key provisions the Guild sought to protect artists were left out. At the center of the controversy are the “best practices,” “database certification” and “notice of use” clauses.

When artwork is being considered for use but the artist’s identity is unknown, the bill’s provisions state the user is to attempt to locate the artist by following the best practices outlined by the Register of Copyrights. These practices have not yet been drafted however, and the bill will go into effect prior to their adoption.

The bill also references a database that’s supposed to make the search for copyright owners possible, but no such database exists for graphic, pictorial or sculptural work. There are no plans for the Copyright Office to create this database, and Congress cannot mandate one be made by a private company. In this case, no matter what best practices the Copyright Register might determine are appropriate for finding a copyright owner, the capacity to do so is not possible at this time.

The Guild proposed a further compromise that the legislation include a publicly accessible “notice of use” filing statement. This provision requires an individual or organization to submit a copy of the visual work believed to be orphaned to the Copyright Office prior to using it.

The Copyright Office would then post the filed information on the Internet so copyright owners could review the website and self-identify themselves as the owner. The virtual “lost and found” department would additionally ensure bad actors could not falsely assert they fulfilled the diligent search requirement of the law prior to using copyrighted work.

The Guild says copyright law was established to protect the creative community that made America the inventive capital of the world. The bill in its current state does too much to protect the interests of possible infringers and reduces protection for creators. The measure is indifferent to artists because it fails to take into consideration the long-term effect to the income potential for a workforce whose yearly median income is only $39,900 according to the Bureau of Labor Statistics. People who use artistic works, such as advertising and promotion managers, make a median average of $73,060 per year.

Guild Administrative Director Patricia McKiernan says the group will remain engaged to resolve these high priority shortcomings of the legislation.

“Copyright protection is an important issue for our membership and the economy they serve,” McKiernan said. “When anyone’s economic rights are reduced, it has enormous implications for the country as a whole. We will remain steadfast for the artist’s interests and this important industry.”

Write to the US Senate about the Orphan Works Act now!
Take Action!

Urge the Senate to protect creators’ rights on S. 2913

“The Shawn Bentley Orphan Works Act of 2008″ S. 2913 has passed the Senate Judiciary Committee, and has now moved to the full Senate for a vote. We were unable to achieve significant changes to the bill to better protect the rights of visual creators and rights holders.

Now is the time to write to Senators. The bill may still be amended while under debate of the full Senate. Write to Senators and urge them to amend the bill, and ask them to vote against the bill if it is NOT amended.

Click on this link for a sample letter to use. You may also personalize your own letter. The letter will automatically be emailed to the US Senate. We recommend you also print out the letter and mail it.

Thank you for taking action!

5 comments... Thanks!

5 Comments so far

  1. Curtis Square-Briggs May 15th, 2008 8:54 am

    I’ve seen this all over the place and I think people are getting their panties in a twist for nothing. If you look up the actual bills, ie:

    it just limits the amount of penalties if you can prove you did a reasonable search for the copyright holder and could not find him/her. A reasonable search is by my understanding a fairly involved one since in this legal sense you need to be doing enough work to indemnify you against future possible legal action and you should take that pretty seriously. The other part is that if you use it for non-profit or something there would be less penalties. It doesn’t mean that you don’t have copyright on your works automagically like normal . . . it does include a part that directs people to create an electronic copyright database and with the tech today, think of a wikipedia with a visual search engine, and you could upload your stuff and attach your name just to give yourself even more protection of you copyrighted work . . . then no one could say they did a reasonable search and you could sue their pants off. I think this actually sounds really awesome . . . it opens the door for works to become a bigger part of culture that might disappear forever because the exist in a weird copyright limbo. As it stands you risk severe penalties for copyright infringement if you reprint anything even after a reasonable search, you have to find and prove that the original copyright owner has been dead the requisite time, and that it has lapsed.

    So old comics reprints anyone?

  2. Jon Sloan May 15th, 2008 6:04 pm

    However, the worst-case scenario being that the ones who establish these databases will now hold every person who has subscribed by the nose. They possibly could say that if you do not come up with whatever subscription fee, you’ll automatically “orphan” this work, then you’ll be S.O.L.

    Under current copyright law, it’s the rights-holder, not the infringer who establishes the market value of the usage rights. And furthermore, the holder can claim monetary damages greater than just the licensing fees. The vague wording seems to help the potential infringer to decide what’s orphaned or not, as well as how thoroughly a search for a copyright holder is done, as well as deciding how much the stolen material is actually worth. I.E. “I stole this and it’s only worth x-amount” when it might be worth a lot more.

    Essentially this bill is structured in favor of the infringer, insuring them that they can’t be sued for more than whatever THEY have established as the market value, and that’s at the expense of any monetary damages to the rights holder. Since the infringer sets the amount that you can recover, it may be a lot less than the money spent to litigate in the first place.

    This bill has wording that is so broad and vague that it’s open to interpretation and abuse beyond the scope of it’s intent.

  3. Curtis Square-Briggs May 19th, 2008 3:07 pm

    maybe . . . my law-degree must be stuck in the mail coming from crackerjack HQ, but I think that the language in the bill isn’t broad in the sense that it could be used draconianly by evil corporations, it seems like it’s vague in the sense that it ‘directs’ the establishment of databases that will not be exactly legally binding . . . like it could help you prove your case in a court but it isn’t in some way making the people who have the database have any power over your copyrights. I didn’t see in the bill anything about the infringer establishing the market value of the copyrights . . . and the infringer, it looks to me, is only off the hook for steep penalties if he/she can prove that they took the necessary (and fairly involved) steps to find the rights-holder. Maybe I’m missing something, but I’m just not seeing any of that in the legislation . . .

  4. Curtis Square-Briggs May 19th, 2008 3:29 pm

    Actually looking over the website, with all caps headlines in bold like: “THERE WILL BE NO PENALTY FOR STEALING” . . . this actually kind of pisses me off. This is just over-the-top bullcrap. There is either massive stupidity or massive manipulation going on here, it seems like Mark Simons has ever read the actual legislation and all this crazy rhetoric reminds me of hateful right-wing bashing of the general retarded sort, ie ‘IMMIGRANTS ARE STEALING OUR JOBS’, ‘THERE WILL BE NO PENALTY FOR SODOMITES’ . . . etc. Seriously if you are concerned that someone will make a billion dollars off of your art and not give you any, look no farther than the traditional corporation-artist relationship and the general social framework at large. There is absolutely nothing in this law that says that if someone took my stuff and printed up a billion tshirts and made a ton of money, that I could not sue them the same way and for the same amount of damages. If someone working for a small non-profit printed up a few and made a few bucks AND could prove in a court that they made a ‘reasonable’ search, then I could only squeeze a few bucks out of them . . . I don’t really have a need to reap huge settlements from small-time non-profits. In fact, if they really like my stuff that much to put it on some t-shirts, that would be nifty. Think like a dandelion, not like a douchebag.

  5. Brian Kolm May 21st, 2008 8:24 am

    Thanks for posting your thoughts on the Orphan Bill. The Bill is not all bad, but there are some parts that are not very good as well. I am amending my post with some new information.

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