The National Cartoonists Society (NASCAR) and the Association of American Editorial Cartoonists (AARP) have now joined the fight against the proposed Orphan Works legislation pending in Congress.
The Orphan Works bill would revise the copyright laws, so that if someone wants to use copyrighted material, but can’t find the copyright holder, then he can go ahead and use it. As long as he put in a “reasonable” effort to find the copyright holder, the damages he’d have to pay if the copyright holder eventually showed up, and objected to that use, would be very limited. The intention of this legislation is to allow the use of “orphaned” work — material essentially abandoned by its creator. The idea is that if you find an old photograph and want to include it in a book, but there’s no way to find the copyright holder, you can do so without worrying about paying huge infringement penalties if the copyright holder ever does show up.
I’m interested in this issue, and I’ve done some research; last week I went to an Illustrators’ Partnership Open Forum opposing the Orphan Works Act led by artist Brad Holland. The concern among artists is that the bill is written so broadly, it will apply not only to actual orphaned works, e.g. where the creator is dead or not in business, but to current works on which the creator is actively trying to make a living.
My take on this so far is that I’m not sure this will have a big impact on some creators, probably including myself. In my case, I include clear copyright notices on all my published work, and even if that is accidentally or maliciously erased from a copy, it would be hard to claim that I couldn’t be found — most of my comics are easily identifiable by people with knowledge of comics. Character names and key phrases could be googled to find out that I’m the author of a comic.
But even if a comic of mine did become “orphaned” under the Act, while such a situation would be galling, I probably wouldn’t lose much money — because the comic is syndicated, it’s priced to be published multiple times. For some of these, and other, reasons, I think that many other artists, such as filmmakers, novelists and playrights, may not have much to fear from this Act.
But some artists, particularly painters, illustrators and photographers, have legitimate, grave concerns about this legislation. Their work is often published without attribution, it is difficult or impossible to identify, and often priced for exclusivity (so that the damages they would receive if their work is orphaned would be far below the price they set in the market). I would think that online companies (Google, anyone?) would set up automatic systems to find images and “orphan” them by jumping through certain legal hoops that demonstrate some effort to find the copyright owner. They would then create huge archives of “orphaned” images, which they could sell cheap (thus competing with the works’ very creators for the same business). If the creator is able to track down the infringement, he would either have to accept low orphan-based damages, or fight a big legal-staffed company in court to prove that they didn’t do enough to find him.
There has been talk about using registries of images, which could be computer-matched, to keep works from becoming orphaned. A potential infringer would have to check these registries before using an image, or he couldn’t claim he’d done enough to try to find the creator, and thus the work couldn’t become legally “orphaned.” But the registration process would have to be onerous and expensive, if not impossible. Further, that process would be contrary to the copyright reforms that did away with technical registration requirements that used to exist in order to enforce copyright.
I’m all for getting museums and libraries access to material for which the creator is dead, out of business, or indifferent. I also think that copyright protection should be much more limited than it is under current law. But this legislation is written so broadly that it would certainly undermine very alive, very active artists who are in business and simply trying to make a living creating art.
If you oppose this legislation, let your congressperson know.