Copyright Infringement and the Orphan Works Act of 2008

Current copyright law is strongly in favor of the creator of intellectual property, whether it’s a piece of creative writing (even if it’s unpublished), or a piece of artwork. Today a person’s artistic creation is protected from the time of its creation in tangible form, even without the added benefit of official copyright registration. But creative rights of ownership are in danger if a new bill passes. The Senate and the House have different versions. The Senate bill, introduced by Senator Patrick Leahy on behalf of himself and Orrin Hatch, is the Shawn Bentley Orphan Acts of 2008 (S. 2913) and the House bill, introduced by Congressman Howard Berman, is The Orphan Works Act of 2008 (H.R. 5889)

These bills are reinventions of the original Orphan Works Act of 2006, which was defeated because of intense opposition from illustrators, fine artists, textile designers, photographers and other artists. All bills were initially created to allow non-profit and education institutions (museums, libraries, universities, etc.) to publish or use images without the danger of being sued-including paying damages and legal fees-if the artwork had been “orphaned,” meaning the creator or the owner of the copyright couldn’t be located. I don’t think anyone would disagree too much with this original intent, especially in the case of someone who wants to have a family heirloom photo professionally retouched or restored by a service bureau but has no idea who the photographer was and can’t obtain written permission to have this done.

The problem is that even the two latest bills have language that will provide serious loopholes for copyright infringers and “for profit” companies, including those that deal in stock images. Right now, one publishing company in China has stolen works of art from 93 artists to publish in a book called Colorful Illustration 93 . These artists were not paid for their work, and because of the covert identity of the publishing company, the artists whose works have been stolen have little recourse. Many artists fear similar situations could occur here in the United States. As the law stands now, a copyright infringer, if caught and successfully prosecuted, can be forced to pay statutory damages of up to $150,000. But under these bills, if a copyright infringer can prove a good faith, reasonably diligent search, apparently the most he would owe the artist is fair compensation-all very vague wording left to the interpretation of judges and lawyers. These bills seem to have no “teeth” when it comes to the punishment of infringers (who are thieves) and little support for the artist who must prove ownership of the created work in a court of law.

I’m faxing my representatives today with a letter voicing my opposition to these bills as they are currently worded. If you want to do the same, you can find your elected representatives at the following link: http://www.usa.gov/Contact/Elected.shtml

For more information from those opposing this legislation please visit: http://www.sellyourtvconceptnow.com/orphan.html   or www.IllustratorsPartnership.org