Attention Artists, Illustrators, and Photographers: Find out about ORPHAN WORKS!

As a visual artist, I have always known about the decades old copyright system in place for artists; in a nutshell, as soon as you write the copyright symbol on the work, it's good enough for the courts. You were always able to register your work or submit it for copyright, and this works well for many professional photographers and illustrators.

Well, all of that could change if legislation sponsored by Rep. Howard Berman of CA gets through the House. The issue in question is how to address fair use guidelines for works where the original author can not be identified. Unfortunately, this could lead to coerced registration with private registries (costing potentially thousands of dollars) in order to protect your rights.

I've read some extreme rhetoric from both sides of the issue, but it speaks volumes that many free-lance photographers have been active in opposing the legislation. It seems to me that the current laws work well and the only use this new legislation has is to enrich registry companies and make it easier for people to use your art without permission. The major problem is that the window of opportunity for making your voice heard on the law is shrinking fast!

Check out the details after the jump:

First, some excerpts from a column by Mark Simon. I do not know where it originally appeared; I had it forwarded from a Myspace blog:

An Orphaned Work is any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time, or by lack of proper registration. In the same way that an orphaned child loses the protection of his or her parents, your creative work can become an orphan for others to use without your permission.

...

Currently, you don't have to register your artwork to own the copyright. You own a copyright as soon as you create something. International law also supports this. Right now, registration allows you to sue for damages, in addition to fair value.

The only people who benefit from this are those who want to make use of our creative works without paying for them and large companies who will run the new private copyright registries.

These registries are companies that you would be forced to pay in order to register every single image, photo, sketch or creative work.

...

Currently, you don't have to register your artwork to own the copyright. You own a copyright as soon as you create something. International law also supports this. Right now, registration allows you to sue for damages, in addition to fair value.

...

It is currently against international law to coerce people to register their work for copyright because there are so many inherent problems with it. But because big business can push through laws in the United States, our country is about to break with the rest of the world, again, and take your rights away.

...

The people, associations and companies behind the Orphan Works bill state that orphaned works have no value. If that were true, no one would want them. However, these same companies DO WANT your work, they just don't want to pay for it. If someone wants something, IT HAS VALUE. It's pretty simple.

Some major art and photography associations, or I should say, the managers of the associations, support this bill. The reason they support it is that they will operate some of the registries and stand to make a lot of money. Some have already been given millions of dollars by the Library of Congress. Follow the money and you will see why some groups support this bill of legalized theft of everything you have ever created.

Two proponents of this new legislation are Corbis and Getty Images. They are large stock photo and stock art companies. They sell art and photos inexpensively and are trying to build giant royalty-free databases. Do you see how they could benefit from considering most works of art in the world orphans?

He offers some good links to more info on the bill and you can read the entire article here (Myspace Blog).

I've done some more digging and found out that Democratic Congessman Howard Berman has been instrumental on this issue as a chairmain of the House Subcommittee on Courts, the Internet and Intellectual Property. As this article makes clear, Berman has had some input from Artists and photographers on the bill, but it might not be enough to fix what could potentially be a horrendous piece of legislation. The above article also makes clear that this bill will get exactly zero publicity and will likely come to the floor in May.

It is imperative that we contact our members of Congress in order to defeat the current bill. Much like the fight over FISA, big companies that will control the registries warn of dire consequences if the law is not updated; in fact, the current law has been working just fine for quite a while now and there's really no need to change it. Google "Orphan Works Bill" and just take a look at the opposition across the board.

Copyright is an important issue but that doesn't mean we should let giant conglomerations dictate what the terms of future fair use will be. Join me in my fight, won't you?

P.S. If you come across any more info on this issue or see something I didn't, please post it here!

•  As someone who has worked as a freelance

  writer-editor-photographer for over 30 years, I wholeheartedly agree with you. I have felt my work has been well protected by the old Copyright laws and do not wish to see them 'updated.' Thanks for posting this, and I will most definitely contact Congressional representatives. Thanks for posting.

  by phrogge prince on Fri Apr 25, 2008 at 12:37:14 PM PDT

•  I'm a creative writer...

  And I never let my "brainchildren" leave home, without first brandishing that iconic "(c) (year) by (my name)" combo..so of course, I want this bill to fail.  If anyone's going to profit by my works, that person shall be me!

  by Spindizzy on Fri Apr 25, 2008 at 12:44:48 PM PDT

•  i agree with your points in principle,

  but there are serious problems that are cropping up in the digital age. Simply emblazoning a copyright line onto one's work is simply not enough any more. Because photoshop, adobe acrobat, and a host of other programs can now manipulate data in files, your wonderful copyright notice can simply be erased/deleted through various means. One could, in theory, add a new copyright notice on a digital file after erasing the original notice. In my own medium, music, there is no way to emblazon a copyright notice on the soundfile at all. It is a vexing problem.

  To protect one's works, one needs to create other means of proof of ownership.

  Also, there is no need (at the present time) to worry about registration companies taking over the process. For a typical literary work, one simply goes to the library of congress website, fills out a couple forms, writes a $45 check, and mails the artwork and the forms and check to the library of congress. A $45 fee is not particularly cheap, but it is very inexpensive for the legal protection that it provides. If one is serious about one's art (and I am, as a professional composer), then this is one of the prices of doing business. And I do not consider this to be too onerous. Also, there are various non-profit groups that provide legal protection and other forms of registration of artworks. For composers, two such organizations are ASCAP (american society of composers, authors, and publishers) and BMI (broadcast music international).

  by troubador on Fri Apr 25, 2008 at 01:17:52 PM PDT

  •  Fair enough, but...

    ...does that $45 cover ALL your works, from now until eternity, or do you have to pay it for each work you want covered? And is it really fair that ASCAP and BMI take in huge amounts of usage dues from bars, restaurants, radio stations, etc., while only paying a pittance to the artists? Also, keep in mind your own phrasing, "at the present time." I'm really not keen on letting these companies dictate on where we go from here.

    I agree that copyright is becoming quite murky in the digital age, but I feel that we should be pushing for a Creative Commons type situation where use of works is free as long as original ownership is acknowledged. You are correct in noting that a simple copyright watermarked on an image is no longer sufficient where the internet is concerned, but we should be working for better and more efficient protections, not more red tape and fees from the likes of Corbis.

    Admittedly, this is not an ideal, catch-all solution. Also, the rules tend to be a bit different for visual and recording arts, though still very similar.

    I think there are some artists who have made huge advances toward a better structure (see Radiohead's In Rainbows) or any YouTube video artist for that matter.

    I also agree that the current system is pretty good. The problem is that this law would be only the first step toward a giant step backward. I'm not so sure that  the situation is as serene as you think.

    by rottenart on Fri Apr 25, 2008 at 01:35:03 PM PDT

    •  actually, I don't think it is "serene"

      while my post is rather dispassionate, I am very worried about copyright issues. I'm personally NOT in favor of a creative commons, because I feel that that such an approach is too readily abused--both financially, but especially artistically. I don't want my so-called "serious" music used to sell captain crunch cereal or to be used by others in any way they deem artistically fit.

      Your point about ascap and bmi are fairly off-base, in my estimation. The fees that they collect from users of my music DO come back to me fairly substantially--minus the costs of administering such a difficult all-encompassing program. But, that is my opinion only, and I'm open to hearing the other side.

      Your first point about the $45 fee for registering a work does not cover ALL your works. You have to pay for each work covered--or you have to bundle a bunch of works together and cover them for one fee. OR--more importantly--you can apply for a waiver of the fee due to hardship. It's not as rotten a system as you might suggest, either. But, I agree, there is cause for alarm.

      My main point is that the problem of simply putting a "c" on your work is no longer sufficient. We must do something more substantial to protect artist's rights to their intellectual property.

      by troubador on Fri Apr 25, 2008 at 04:08:58 PM PDT

      •  Absolutely...

        I didn't mean to come off combative. I agree with your central point, namely that we need to adapt the system to the 21st Century. My fear is that the artists themselves will be left out of the deliberative process.

        I've heard different sides of the BMI/ASCAP thing. Some say they get screwed and some say otherwise. I think it comes back again to what degree of control you want an organization like these to have over your work. If BMI is willing to fight against infringement and theft, then good on them. I guess it's an inherent mistrust of authority that leads me to believe that somehow they don't have the artists' interests at the forefront.

        One last point, on the difference between literary, musical, and visual arts: if $45 is what it would cost to ensure that my novel or composition, then yes, that's a pretty fair cost of business. It's not very likely that first drafts or preparatory sketches would even see the light of day, much less be targets for theft. As a visual artist or photographer, one would have literally hundreds if not thousands of images over the course of a career. Bundling or not, that is going to cost a fortune to register. I get a bit chuffed at being forced to pay thousands to ensure protection.

        Again, don't take this as an affront to you. I think we're really on the same page. In fact, this discussion is exactly what I would like to see happen on this issue: have real people involved in the discussion, people in the industry, people from the business end, artists of all stripes (much as Obama would like to do with the Heath Care debate, if I may go completely O/T :). I feel confident that our discussion is bound to have much greater results than just letting Corbis and Getty Images decide how to proceed.

        Thanks for the counter-point though! You're great!

        by rottenart on Sat Apr 26, 2008 at 09:29:42 AM PDT

        •  agreed... I could see from your posts that

          we were basically on the same page but were taking different approaches.

          About ascap and bmi: yeah... it's also a difficult question. Their missions of collecting fees from amazingly diverse businesses and industries is a monumentally difficult job. I don't make that much from ascap/bmi, but i don't feel i'm being taken advantage of either--perhaps that's a function of me not writing "popular" music--only "serious" and "movie" music.

          My wife is a lawyer and helps me with things like copyright, so it is not a burden for me in the way that it might be for some. Also, that $45 fee can be stiff for smaller works and for individual media, like photos. Actually, I don't know the fee for photos are they $45 too? My guess is that one could create a "book" of photos and copyright the entire thing for $45. Of course, if you're going to bundle 100 photos, that means that picture #1 may not be protected during the time it takes to produce pictures 2-100. I'll ask my wife more about that and give a reply if anyone is interested.

          Finally, I'm sure YOU and I both have artist's rights in mind--since we are artists. I do think that better solutions to these problems need to be reached. The present system is basically o.k. in my opinion. I just think that as the digital age begins to have more control over this stuff that artists will begin to feel the effects of theft more often.

          You're great, too! Thanks for writing an important diary! peace.

          by troubador on Sat Apr 26, 2008 at 02:06:07 PM PDT

•  I'm a nonfiction writer, and

  I will take action as suggested.  Thank you.

  Yes, my work is well-protected by the existing copyright laws as well.

  And I will send your alert onto other friends whose work would also be affected.

  by RadioGirl on Fri Apr 25, 2008 at 01:18:07 PM PDT

•  It's not as much ......

  about the law as it is some other strain of leeches with their hands out . If you could , find out if Congressman Berman is getting something for his efforts . When it comes to money , law and rights be damned .

  by ArtfromMI on Fri Apr 25, 2008 at 01:25:33 PM PDT

•  I, too, am a writer.

  But I am not very motivated or productive, and I am not very good, so there is zero chance that my work will be plagiarized.  I nonetheless support the effort to defeat giant conglomerations.  Down with The Man.

  by Slim Chance on Fri Apr 25, 2008 at 01:36:11 PM PDT

•  ASMP has a summary of the bill.

  http://www.asmp.org/...

  Shooters: join.

  by slowheels on Fri Apr 25, 2008 at 01:43:51 PM PDT

•  I'm a visual artist/animator/writer

  and this is of concern to me. I want to keep the law what it is, despite the digital age and how your work can be manipulated.(most artists with an eye can tell anyway and there's originals that i always keep just in case I have to prove it via sketches or whatnot) You still deserve the rights to your work without having to register it and whether you can afford to do so or not. Like man y things, there is no need to break international law and that is always a horrible idea. This will halt a lot of the dreams your average artist has and he will spend time trying to copyright and get the legal tender of an idea rather than improving upon that idea.

  Not that copyrighting is a bad idea, for they say to do it(as they did at the Art institute I went to) so that you can prove it that much easier, but artists deserve the protection that has earned the art community a chance(though it is small) to make it in this business without being owned.

  You know, the reason there are other animation companies besides Disney, is because of creator's rights to their work, which Disney did not give, so animators left and created Warner Brothers and many of the other animation studios people know and love.

  There's also the story of Jerry Siegel and Joel Schuster who created Superman, but did not get the rights to him until a legal battle and support from the artistic community later on and DC finally gave in.

  It's hard enough making it in this industry without having to worry about crap legislation like this making it harder for creator ownership rights on all levels of each kind of art.

  Thanks for sharing this important issue for artists of all types.

  by priceman on Fri Apr 25, 2008 at 01:44:15 PM PDT