Jul 08

The U.S. Congress is considering a major reform of copyright law intended to solve the problem of “orphan works,” copyrighted material whose owner cannot be found.  This “reform” would significantly limit the rights of original artists and unnecessarily burden them with costs and bureaucratic paperwork.

The bill, H.R. 5889 “Orphan Works Act of 2008,” is being rushed through Congress with little debate.  According to OpenCongress.org:

This bill would limit the amount of damages a copyright holder could collect from an infringer if the infringer performed a diligent search for the copyright holder before using their work. The goal of the legislation is to free up for reuse copyrighted works whose holders cannot be found. It would also set up a process for the Copyright Office to certify commercially-produced visual registries to help people locate the holder of a copyright and prevent the orphaning of works in the future.

Copyright used to be an “opt-in” system that required artists to explicitly register and renew their copyrights.  But in 1978, Congress created an “opt-out” system where copyright protection is automatic the moment a work is published and lasts for the life of the author plus 70 years.

As discussed in the New York Times, “the solution before Congress is both unfair and unwise.”  The bill would “encourage copyright infringement by assuring that the costs of infringement are not too great.”  Also, the proposed change is “unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright.  Many have relied on that promise.”

If this new bill concerns you, please consider contacting your Congressional representatives.  You can send them an electronic form letter, which is reproduced below to provide additional information on this subject:


Dear Representative,

As a constituent, a creator and a small business owner, I’m writing to ask that you vote no on the Orphan Works Bill now being rushed through Congress. There are good reasons why both the House version (H.R. 5889) and the Senate version (S.2913) have become controversial: neither is the simple amendment to copyright law they purport to be.

The backers of these bills are circulating a number of misleading statements about them. Please let me respond with some facts.

“The Orphan Works Act is a small adjustment to copyright law.”

False. The Orphan Works Act is a radical reversal of copyright law. It presumes that the public is entitled to use your work as a primary right and to exploit it – even for commercial purposes.

“The goal of copyright law is to make work available to the public.”

False: Copyright is “a legal device that provides the owner the right to control how a creative work is used.”


By allowing infringers to use any owner’s work without his knowledge or consent, the Orphan Works bill specifically nullifies that primary right.

“The Orphan Works Act is based on Copyright Office recommendations.”

True, but the Copyright Office studied the specific subject of older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets, a subject the Copyright Office never studied.

“An Orphan Work is a work whose author is hard to locate.”

False. A professional artist may be easily locatable to hundreds of clients, but still be hard for millions of people to find. The failure of any one person to locate an easily locatable person should not become a justification for appropriating that person’s creative property.

“The Orphan Works Act will benefit artists.”

False. The bill will benefit only re-mix artists, who cannot create without appropriating the work of others. It will not benefit professional artists, who generally must indemnify publishers that our work is original and not based on infringements.

“Infringements occur now, so under Orphan Works law nothing will change.”

False. Infringements do occur now, but they’re illegal. This bill will legalize millions of them, encouraging rampant abuse of loopholes by bad actors.

“But infringers will have to do a reasonably diligent search before infringing.”

False. These bills are filled with ambiguous terms such as reasonable diligence, which will be left to courts to interpret. Because of these ambiguities, the same work may be judged an orphan in one court proceeding and not in another.

“But if the rights holder comes forward, he or she will be entitled to reasonable compensation.”

False. Since orphan works transactions will occur only after infringement, the rights holder will have no leverage to bargain for more than the infringer is willing to pay. In reality, serial infringers will establish low “reasonable” fees, which will effectively become the legal standard in lawsuits regarding such uses.

“But artists will be free to take infringers to court.”

True, but artists should not have to go to court on a regular basis to contest the diligence of an infringer’s search or prove the value of their work for uses they did not authorize and to which they may never have consented in advance. As a business person, I make my living from voluntary business transactions, not costly and time-consuming lawsuits.

“Artists who have registered their work can still receive statutory damages for illegal infringements.”

True, but only if the illegal party can be positively identified in advance. Because the Orphan Works bill will legalize “good faith” infringements even of work “orphaned” by prior illegal infringements committed by unknown third-parties, the inability to identify the illegal infringer will effectively nullify the artist’s ability to get legal counsel on a contingency fee basis and this will nullify his ability to determine guilt and receive damages.

“This bill will help copyright buyers find copyright sellers.”

False. It will do the opposite, by letting users infringe the works of authors they can’t find. By contrast, there currently exists a robust business by which artists employ agents, directories, source books and other advertising venues to make themselves available to users.

“The bill does not mandate artists to register their work with private databases.”

True, because mandatory registration would clearly violate Berne, NAFTA, TRIPS, WIPO and WTO treaties. But in reality, the effect will be the same, because artists who don’t digitize and register their entire inventory will find their unregistered work vulnerable to infringement.

“Artists are over-reacting to this bill.”

False. The cost of compliance alone will be prohibitive for many, if not most artists. Digitizing and registering thousands or tens of thousands – or for photographers, even hundreds of thousands – of images, at a cost of between $5 to $100 per image will be an impossible burden for many to meet.

“The bill will only affect the work of professional creators.”

False. It will affect every visual image from professional paintings to a family’s vacation photos or any work placed on the internet. Since ordinary citizens are unlikely to comply with the onerous and costly demands of registering work with commercial databases, the Orphan Works bills would effectively strip millions of voters of their basic copyright protection.

To sum up: this bill would force millions of individual copyright owners to spend time and money digitizing work at their own expense and handing it over to unknown privately-owned databases for the express purpose of making their unregistered works easier for infringers to infringe. No sensible business person would do this willingly, and no law should make them.

While individual artists, small businesses and ordinary citizens may be harmed by this bill, large interests are looking to profit. Google has already stated that they intend to use millions of orphan works. Does this sound like a bill that is merely intended to make some archival work available to libraries and museums? To put it bluntly, something is wrong here!

This bill was planned behind closed doors, introduced on short notice and fast-tracked for imminent passage. THERE IS NO NATIONAL EMERGENCY TO JUSTIFY RUSHING THROUGH ANY BILL THAT CONSTITUTES SUCH A RADICAL CHANGE TO THE OWNERSHIP OF PRIVATE PROPERTY. Please vote no on this bill and send it back to committee with a demand that it be subjected to an open informed, and transparent public debate.

Artists United Against the U.S. Orphan Works Acts

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Article published on July 8, 2008

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10 Responses to “Copywrong: How H.R. 5889 “Orphan Works Bill” will Reduce the Rights of Individual Artists”

  1. Getta Life Says:

    Get a life, learn to share, and copyright will benefit everyone,
    The intent of copyright is the betterment of society. It wasnt intended to line the pockets of authors as stated by Sandra Day O’coonor.
    If copyright holders, or should I say publishers 🙂 could see the forest through the trees they would be able to see what’s coming. Just a little karma coming down. The congress has no choice but to straighten out the mess caused by the stupidy of the publishers who cost themselves money making relationships and customers..

  2. timm Says:

    Learn to share? I think my network of websites with tons of free information demonstrates that I’m more than willing to share. What I don’t want to happen is open season on all content, such that anything published automatically becomes public domain available for anyone to use for any purpose without compensation or acknowledgment.

    If we remove all ownership and profit motive from society, the result is communism, which I think history has shown is a losing proposition. Most people who want “all content to be free” are generally “takers” who take much and give none.

    Since you believe we should share everything and benefit everyone, would you be willing to open your house and let your neighbors help themselves to your possessions?

  3. tomm Says:

    Another diatribe defending a handful of greedy publishers who have been able to manipulate the law and buy off judges.

    The Orphan Act doesn’t ELIMINATE damages it merely limits the amount of damages the courts can award a rightsholder in cases where the copyright holder can’t be EASILY found.

    In other words, the rightsholder may only end up collecting the actual damages that was incurred by an infringement (let us not forget that copyright infringement is a “strict liability”) which could have been totally avoided in the first place had the rightsholder made their contact information easily accessible to begin with.

    It’s time for copyright law to be changed in such ways as to no longer encourage publishers from using copyright infringement as a profit center. Publishers need to learn how to market their wares in this new economic environment, and until such time as it no longer becomes more profitable to sue than to collect royalties, I’m afraid there will be little incentive for them to do so.

    Edited: No personal attacks, please. We’re supposed to be reasonable adults having a mature conversation here.

  4. timm Says:

    I don’t think the major publishing companies will ever have trouble defending their copyrights. As usual, it’s the “little guys” like me who will end up getting screwed by this bill. We simply don’t have the time and money to register every blog article we write and photograph we publish with the copyright office. If we are forced to register every work to receive protection, it essentially eliminates copyright protection for everyone EXCEPT the major publishing companies and their hordes of lawyers.

    Your core argument is basically for the little guy and against the mega-corporation (which I applaud), and yet you’ve unwittingly done just the opposite.

  5. tomm Says:

    Okay . . . fair enough. However, I am having difficulty understanding your point. As a rightsholder you already ARE forced to register every work in order to receive protections beyond actual damages. Without registration you are NOT entitled to statutory damages, attorney’s fees or treble damages. You are ONLY entitled to actual damages so what is your point? What right or protection will the Orphan Act deprive you of that you currently have.

    That aside, am I to understand that you have a problem with the $30 registration fee? You can always register multiple works in a single catalog for $30. Am I missing something here?

    Incidentally, my comments were directed at the major publishers and not the “little guys”. I happen to be a member of AIMP and have many small publisher friends that I network with and actually like as people.

  6. timm Says:

    Tomm, good discussion.

    Currently I am forced to register a work ONLY if I wish to receive protections beyond actual damages. i.e., If someone infringes and I want to sue them, THEN I have to register. And I can register at any time, even after publication. Whereas with the Orphan Works Bill, I have to register everything beforehand to receive any protection.

    I’m not sure where you came up with the $30 registration fee. The copyright databases described in this bill currently do not exist, and therefore no fee schedule has been set. But we’re talking the U.S. government here. Do you really expect they will allow blanket registration for an artist’s entire body of work for $30? Name one other government or private registration system that operates this way. Patents, incorporation fees, domain fees, are all pay-per-item. Even the current copyright registration system is $45 PER WORK. The time and money required to register every work I (or any other small-time artist) produces would be prohibitive. Good for mega-corporations and whoever runs the registration systems, bad for the little guy.

    By limiting damages to fair-use fees, doesn’t the Orphan Works bill essentially legalize stealing of all intellectual property? Let’s apply this scenario to brick-and-mortar stores. Let’s pretend the only penalty for shoplifting at BestBuy is you have to pay the item’s fair cost. So if I am skilled enough to steal a DVD from BestBuy, it’s free to me. But if I’m caught, then I just have to pay the DVD’s original price of $19.99. So why would I even bother to pay for anything? I’d attempt to steal everything I could since there’s really no downside to stealing or getting caught, just upside.

    It is a violation of the “Berne Convention for the Protection of Literary and Artistic Works” for any country to impose registration on a rights holder as as a condition of protecting his copyright. The U.S. is also a member country of the “Agreement on Trade-Related Aspects of Intellectual Property” (The TRIPs Agreement). Article 13 of this copyright-related treaty specifies a Three-Step Test for exceptions to an artist’s exclusive right of copyright. The Orphan Works Bill of 2008 violates the Berne Copyright Convention and fails the Three-Step Test of TRIPs. So I have no idea how the government plans to square the Orphan Works Bill with our international obligations on copyrights.

    As with everything in Washington, follow the money. Who is pushing to fast-track this bill through Congress with little discussion? Google, Getty Images, RIAA… all mega-corporations who can protect their own work but have a strong interest in weakening the protections of the millions of small artists.

    Tomm, your heart is the right place in that you want to protect the little guy against the greed of the mega-corps. If my assessment is correct, I encourage you to rethink your support for the Orphan Works Bill. Once you dig deeper, I believe you’ll see that the Orphan Works Bill is a Trojan Horse to strengthen mega-corporations and reduce the rights of individual artists and publishers.

  7. Laura Says:

    I am an artist of sorts. I draw, paint, sculpt, design, write, etc. But I don’t really cultivate my talents (as I probably should) nor do I generally post on the web so I don’t really feel all that threatened by this bill.

    However, my daughter has a natural innate talent for drawing, story telling and music. Even when she is not trying, her drawings are fabulous. I don’t say this with bias; it is what I hear from people all the time. Even as a small child, it was recommended by her teachers at school that she be moved to an art based school to help with her talents. We took her out of public school and put her in a Waldorf school.

    Her talents have grown over the years. She has written several children’s books (including illustrations) that really should be published but finding a publisher that publishes children’s books written and illustrated by a child is a lot easier said than done.

    She is the one that brought this bill to my attention. She came and told me today that she heard “George W. signed the Orphan Works Bill”. Let me tell you, she is none to happy about it and is making sure everyone who will listen knows it.

    She has a deviant art account where she and her friends post their works to “share” with others. Now, keeping in mind the fact that I taught her years ago to sign and date everything, no matter how good or bad, and whether she posts it or not. I told her that as an artist, this is very import.

    Even though she has done this, one of her friends called one day to say that one of her drawings had shown up on someone else’s site and she was not given credit for it. Even though her signature was right there on the picture, they had managed to crop it just enough so you could not tell whose it was. Of course, this particular picture was originally a drawing that she scanned into the computer so they can claim what the want but the proof is on paper. Nowadays, she signs her drawings in a place where there is no way to crop it out.

    The point of this little story is that some people are rude that way, and can claim they made attempts to find the true artist without ever actually have made any attempt at all. It is my belief that the Orphan Works Bill is just going to make it worse and the true ARTISTS are in danger of losing what little protection they had in the first place.

  8. Hammond and Hammond Says:

    Soo much ambiguity in these bills. Thanks for clarifying a bit, but we should all tread lightly to avoid any unnecessary confrontation.

  9. Henderson Injury Attorney Says:

    Personally I think that this bill does encourage copyright infringement, and is more counterproductive than anything else. How can Congress pass a bill that basically says “It’s ok to steal, just as long as you wait long enough”. Who’s fault is it if the artist can’t be found? Do they deserve to lose the rights to their own original material because someone else wants to use it and can’t get in contact with them? None of that makes sense to me, but then again there have been a lot of bills that Congress has passed/considered that do not make sense to me.

  10. Melinda Helbock Says:

    Is the goal of this bill to encourage theft? I mean seriously, how can anyone think that this is fair in any sense of the word? When someone creates a work of art, there should not be a statute of limitations on how long they can claim it as theirs before someone else comes along and takes it. I have an idea, how about congress focuses less on reducing the rights of artists and more on getting the state of the country in order? Healthcare, a painfully volatile economy, multiple wars, and they are wasting time on this nonsense.

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