Orphan Works Act 2008 - Artists' Rights Under Fire?

I cannot recall any legislation regarding the rights of artists that has caused more consternation and downright hostility than the Orphan Works Act 2008. The act has consumed huge amounts of energy and endless posts in the blogosphere and print articles regarding it. The volume of activity alone ought to be enough to let legislators know it needs work before being brought to the floor for a vote.

Here is the description of the act from the Open Congress site:

Orphan Works Act 2008 - To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

OpenCongress Summary:

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.

A good way to get started on making your own decisions is to to read the full House of Representatives version known as the Orphan Works Act 2008. It is neither long nor ladened with legalese for you to take time to read it.  Open Congress provides this Bill Status Widget for you to keep a current update on the status of the bill on your site or blog.

Clint Watson intrepidly took on the debate in a recent post on his excellent Fine Art Views blog. His conclusion was the act is not as onerous as some portray it. He got legal opinion from attorney, Bill Frazier, who writes the Art and Law column for the Art of the West magazine. Naturally, some of his readers chose to disagree.

 

Clint's perspective is supported by Joy Butler. She is an attorney practicing in the areas of entertainment, intellectual property, and business law. She is also the author of The Permission Seeker's Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions . A book that should be on the shelf of every professional artist.

 

Joy also publishes the Guide Through the Legal Jungle blog. She gives a straigthforward unbiased opinion titled What Copyright Orphan Work Legislation Does and Does Not Do, which you can read on her blog, including this unfettered clear statement:

"In the meantime, creators should be assured that the legislation does not change the fact that your work is copyrighted as soon as you create it."

If you want to see some balance, you can read Robert Rosenthal's plea and rationale for supporting the bill. He is in the Graphics Arts division of Princeton University. And, on the other side of the professorial coin, you can read Lawrence Lessig's op-ed piece from the New York Times here. Lessig is a law professor at Stanford. A quote from his piece:

This “reform” would be an amazingly onerous and inefficient change, which would unfairly and necessarily burden copyright holders with little return to the public.

Not suprisingly, Robert Genn has waded in with commentary on his highly respected and heavily trafficked Painters Keys blog. His post is titled Mickey Mouse Bill. As you can imagine from the title, he's not pleased. There are some very good comments with links of their own on this post, including one to the Senate version. It is slightly different than the House version and considered to be more fair to artists in some of the analyses I've read of the two bills. In the event the two bills were to pass both houses, the bill would have to be consolidated before going to the President for signing into law.

 

Fractured Atlas is a non-profit organization that provides services and support to artists and arts organizations. Here are some cogent thoughts from its founder and director, Adam Forest Huttler. His post includes a link to another from Ars Technica site. I find both more reasoned and level headed than this YouTube rant titled Corporate Theft, which is getting lots of views and publicity from Art Calendar magazine and other media. The Art Calendar piece provides a copy of an editable letter you can use to send to your representatives along with other links to visual arts organizations that oppose the legislation.

 

Despite the fact I believe this legislation has near zero chance of getting a floor vote in this presidential election year, I think this legislation needs changes to clearly define how it will be used. I also see too much baseless disinformation adding fuel to a legislative snafu that is causing overwrought reactions. I think the intent to free truly orphaned works is a good one.

 

Most importantly, if you are at all concerned about the legislation you should contact your representatives and let them know your dissatisfaction. You can find links to find out how to contact your legislators in the Art Calendar links and comments to Robert Genn's Mickey Mouse Bill post.

Comments

[Lynn Lemyre]

Thank you for taking the time to ferret out both sides of the story. It's just so easy to either panic or stick your head in the sand and say that there's no problem. Neither action requires a whole lot of mental effort. It takes effort to become fully informed and come to your own conclusions. Thank you for showing a balanced perspective on this sticky issue.

[James O'Rear]

Barney, thanks for taking the time to help educate us about an issue that hits us all at gut level. Its quite easy to get riled up and lost in the furor over this, your links to level-headed information is a great calming influence.

[Adan Lerma]

one of the best balanced summaries of what's going on with this bill, some of the pro's and con's, but the extremely sensible suggestion :

"...Despite the fact I believe this legislation has near zero chance of getting a floor vote in this presidential election year, I think this legislation needs changes to clearly define how it will be used."

thank you much!

[Tanya]

Thanks for the measured and balanced analysis, Barney.