Funk & Weber Designs

I Oppose Current Orphan Works Legislation

Artists need deadlines, I guess. We’re coming down to the wire on Orphan Works legislation in Washington, and artists are finally organizing to oppose it. I applaud those far-sighted folks who saw this coming and followed it carefully. I preferred to ignore it while I could, let those with more political inclination take care of it for me. Unfortunately, they really need help. A few weeks ago, I finally wrote letters to my senators and representative. The one response I got disturbed me enough to write again.

I believe the legislation in its current form is bad, bad, bad for visual artists. While I understand and to some degree support the initial goal of the legislation–to make certain works of art no longer under copyright protection easier to access and use–I think the current bills are too broad and vague. Instead of opening a gate to a small portion of inaccessible art, the bills fling wide huge doors to copyright infringement.

One of the mind-boggling issues in the Orphan Works legislation is the subject of a digital database to house and organize copyrighted art. This database would be where potential art users would go to search for the owner of an image or art object. If the art-user, after a “reasonable” search (“reasonable” is not defined), did not find the image in the database s/he would be essentially free to use it in any way s/he wanted. Repercussions for wrongfully using an image that turned out to be copyrighted are greatly diminished in the current legislation, so there’s little deterrent for lazy searches. There’s also nothing stopping someone from registering art that is not his/her own, or that is derivative of someone else’s.

croc.jpgIt’s a croc.

Of course, this database would be privately established and maintained, and I’m guessing it won’t be a free service. Who will pay for digitizing all artwork for inclusion? Who will pay for registration? Who will pay to maintain the database? Answer: the artists.

I could not afford it.

Can you even fathom registering every single piece of art that artists create?! I can’t, and I have a great imagination.

We already have a copyright office. Oodles of art is not formally registered because it is expensive and current laws protect it as soon as it’s created.

How many art databases will be established? How many would a potential art-user have to search to claim a “reasonable search”? How many would an artist have to register each piece of art with in order to protect his/her work?

This is just one problem with the Orphan Works legislation. There are others.

For more information, go here.

In a nutshell, this is why smarter people than I oppose this legislation (taken from the Web site in the link above):

We are strongly opposed to the Orphan Works legislation because:

1. The bill(s) will basically allow anyone to use a design for any purpose— without the copyright holder’s permission – after performing a vaguely defined ‘reasonable search’.

2. The bill(s) will allow an infringer to create—and copyright—a derivative work even if the copyright holder of the original design surfaces.

3. The bill(s) not only eliminate reimbursement of court costs and legal fees, but they also eliminate statutory damages which is the only thing that prevents rampant infringement.

4. The bill(s) require the implementation of a searchable visual arts database that does not currently exist, and yet are scheduled to take effect on the EARLIER of: January 1, 2013, or when the copyright office certifies the existence of at least two independent, searchable databases. Since there is currently NO reliable way to trace a piece of art, the effective date for this legislation should—and MUST— be tied to the implantation of these databases.

5. These bills were introduced on short notice and are being fast tracked for imminent passage without allowing the voices of the Creative Arts industries to be heard. This is a very serious situation for all visual artists— designers, photographers, illustrators, and art licensors— as well as the manufacturers who license and use our work. We respectfully request that Congress slow down this legislation until our voices can be heard.

So I’m asking you to help. You don’t have to be an artist to oppose the Orphan Works legislation; you just have to appreciate art and want to support artists. Heck, not even that. You just have to support the idea of justice. I think it’s just plain wrong to take the work of someone else without permission and use it, whether for profit or not.

Contact your senators and representatives to say that you oppose current Orphan Works legislation. The Illustrators Partnership of America has made it super-easy with online form letters:

Contact your Senator
Contact your Representatives

Voting on this legislation happens next week, I think, so time is tight. Snail mail letters to DC won’t arrive in time. Letters and postcards to district offices are good, as are phone calls and emails.

Inertia is hard to overcome, but I hope you’ll click on the links and send the form emails to your Congress folks. People who know more than I do are trying to create better language to meet the original goal of the bills while still protecting working artists, but they need time to work. I hope we can stop current legislation and allow art supporters to have a say in how better copyright legislation can be implemented.

Categories: Funk & Weber Designs

3 replies »

  1. Very good points. I’d heard generally about the legislation, but didn’t really know what it was about. I’m contacting my people in congress today. Thanks for the heads up.

  2. Thank YOU, Becca. There are good people fighting the good fight, and I want to support them and help buy them the time they need.