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How this proposed legislation will impact your copyright rights.

This page was last updated ( a new website was added www.owoh.org)

The Artists Foundation (AF) is working very closely with several artists-run advocacy organizations on tracking and advocating on the Orphan Works 2008 Federal Legislation. The proposed legislation, if it passes as it is now written, will change US copyright law. Such a change, as it is now written, will negatively impact artists of all disciplines (literary, visual, music, etc.), as well as every US citizen. There are two bills - one filed in the House H.R. 5889 and one in the Senate S. 2913. The bills differ from each other BUT both bills are highly problematic and should not pass as they are now written.

It is very important to note that the legislation is moving quickly in both the House and in the Senate:

The House Bill- As of 5/7/08- the House IP Subcommittee unanimously approved H.R. 5889, and it has moved to the House Judiciary Committee. There were no needed corrective changes made to the legislation (as of this date by the Subcommittee)

The Senate Bill- As of 5/15/08- the Senate Judiciary Committee unanimously reported S. 2913 out favorably with no needed corrective changes made to the legislation.


Currently under US copyright- the only legal way to use someone's work (whether you have officially filed for copyright with the US copyright office or not) is to find the copyright owner and negotiate for the use. If you can't find the copyright owner you can NOT legally use the work. If the proposed current legislation passes as it is now written, that will change. These proposed pieces of legislation will allow for someone (a person or a business) who has done a "search" (which is not clearly spelled out in the legislation at this point as to how long and what the search will need to entail) and if they can't find the copyright owner, they will be legally allowed to use or infringe the copyright (i.e. use your work). This will hold for artwork, music, family photos, films, essays, poems, etc.. You don't lose your copyright, but your work will be able to be legally infringed under these pieces of legislation if your work is deemed to be orphaned.

What has prompted this legislation you may ask? Libraries and other educational institutions have works in their collections that they would like to use the copyright for educational purposes and presently they can not find the copyright owners in question. Individuals want to be able to retouch old family photographs and they too can't find the copyright owner of the photographs (although I personally know folks who have had their family photos retouched without any problems). Documentary filmmakers are also in need to have access to images and work that they can not find the copyright owners of. These are clearly very important issues that need to be dealt with- unfortunately both pieces of legislation allows for anyone to infringe who has done a search and the proposed legislation makes no distinction from educational institution v.s. commercial institution. (i.e. an advertising company could use your work under this proposed legislation if they searched and could not find you). Although there is some effort to minimize someone using the orphaned work for commercial purposes, both pieces of legislation do not offer enough protection for artists of all disciplines or individuals for that matter.

There are other aspects of this legislation that are very troubling that are contained in both bills: 1) the pieces of legislation calls for on-line databases or what would be also called registries to be certified by the Copyright office for visual artists to register their work with. No where in the legislation does it say they are to be free of charge to artists and although the law does not mandate you to register your work with these databases/registries- it is clear that these databases/registries will be a key tool for those to use searching for the copyright owners and a way for them to justify they did a search, 2) the amount of damages that can be retrieved by the copyright owner if they "surface" and find their work was deemed and used as an orphan work when in fact it was not orphaned are very problematic and unacceptable (legal fees need to be covered) 3) this law will essentially force musicians, writers, visual artists, and others who want to protect their creative work to officially copyright their work to protect it-this will be too costly for most individuals and small businesses. 4) and the very real problem that works will be classified as orphaned works when in fact they are not orphaned, etc..

The AF has complied key talking points for individuals & organizations to use in advocating for changes to the Orphan Works Legislation.


A new website to be aware of in regard to the orphan works legislation:

The Orphan Works Opposition Headquarters: http://www.owoh.org/

If you want to track and read the legislation (HR 5889 and S.2913) off the Federal Government's official website: http://thomas.loc.gov (again I encourage you do to so)

PLEASE note- do not mail a letter to your Congressperson or Senator to their DC office (it will take over a month for them to get it due to the mail needing to be screened).If you want to mail a letter - send it to their district office. I would also urge you to call their staff and meet with their home district staff on this important issue. To find out who represents you: www.vote-smart.org

Another wonderful resource is the Stock Artists Alliance's website. www.stockartistsalliance.org

If you run an artists/arts organization or an artists/arts advocacy organization and are interested in working with the Artists Foundation on this issue- email us- afinfo (at) artistsfoundation.org

I urge you to get involved and to get others involved. Your copyright protection and everyone else's is depending on it.

Kathleen Bitetti

©2008 The Artists Foundation
516 East Second St. #49 Boston MA, 02127

Another Article on this Proposed Legislatiion Available on Writing.Com:
Kenzie's article:

 Artists & Photographers? Read This!  (E)
Don't Let Congress Orphan Your Work. Read even if you only post family photos online!
#1434710 by Kenzie



A. Market deregulation & unfair competition

This legislation will in effect be a deregulation of the copyright "market" and will cause and promote widespread copyright infringement abuse. What happened to the most vulnerable people in the home mortgage market crisis will also happen in the copyright "market" to the vast majority of artists of all disciplines primarily due to fact that this legislation allows commercial interests to legally infringe copyright. However, the AF is not in favor of allowing all non profits to use orphan works- only accredited libraries, museums, and archives. This is key. By allowing all non profits to use orphan works, it will undercut our small businesses and artists (why hire an artist to create an image when one can use an orphan work?). Our artists community and our small arts businesses are already struggling. Also not all non profits are "good actors." One only has to point to the good and needed work of Senator Grassley on non profit hospital accountability/reform that resulted in a new 990 H tax form for this sector (The AF was involved with the dialog on this issue with his office). Also the fact that the legislation allows an infringer, who has done an undefined diligent search * for the copyright owner, can make a copyright of the new work they created from the work they infringe. The infringer also is entitled to keep their copyright EVEN after the "infringed" copyright owner has surfaced. This is unacceptable and sets up unfair competition dynamic in the market place.

*(Note the amended new version of S.2318 does set a minimum search requirement but it falls short of the needed protection)

B. The Visual Artists Rights Act

This legislation, if passed as it is now written, will clearly undermine the Visual Artists Rights Act of 1990 and the needed protections under our current copyright laws. This was a key law that put our country in compliance with international law and treaties. The moral rights of an artists are just as important as the legal and economic rights.

References: Visual Artists Rights Act from Wikipedia; Waiver of Morals Rights in Visual Artworks, Executive Summary, U.S. Copyright office.

C. Work Samples

In our creative economy industry, artists of all disciplines and small businesses send out work samples (music demo tapes, film shorts, jpegs/slides of their artwork, writing samples) in their effort to secure art shows, music/literary contracts, film deals, and/or jobs. Usually those materials are not returned to those who submitted the work- even if they provided the means to return their materials. Under current copyright law the holder of these materials can not legally infringe or use the work/copyright, but under this Orphan Work proposed legislation, if the holder of those materials does an undefined "diligent" search and can not locate the copyright holder, they can legally infringe the copyright (i.e. often those work samples are kept for years). Again, not only will they be allowed to infringe the copyright, but they will also be allowed to create, copyright, and profit from a derivative work made from the work they are infringing EVEN if the "orphan" work's copyright owner surfaces.

D. Harvesting of Art Work

A key concern is that artwork will be "harvested" from student artists of all disciplines and those artists who come from underserved and low income populations (folk artists, Native American artists, artists of color, disabled artists, etc.) as the "infringer" will know that these artists will more than likely be hard to locate and that these artists will not have officially registered their work with the copyright office and/or "registered it" in the certified privately held databases/registries. They will also know that these artists, and most artists, citizens and small businesses, lack the resources to go after them. The legislation does not cover the legal fees of the victim if the "infringer" followed the yet to be established orphan works search criteria (Note the amended new version of S.2318 does set a minimum search requirement but it falls short of the needed protection). Instead it puts all the responsibility and financial burden on the artists (now if someone illegally infringes legal fees are covered for the victim and there is a fine of $150,000 per infringement). Infringers have now been given a get out of jail free card. Also once again it needs to be pointed out that those infringers who have done a diligent search of the "orphaned work in question" are allowed to keep the copyright of the new work created from the "orphaned work" even if the orphan" work's copyright owner surfaces. The infringer has everything to gain.

E. The Structure of the Consignment of Fine Art & Craft Market

In the Consignment of Fine Art market (think commercial galleries and craft galleries), artists are not told who has purchased their work and the purchaser is not given the artist's contact information (In 2006 it became the law in MA that artists must be given the contact information on who bought their art to enable the artist to better control their copyright). The same holds true for art auctions and art sold on the secondary art market. This makes it almost next to impossible for visual and craft artists to keep track of who has their work and to be able easily track their copyright, but thankfully under current copyright law their work can not be infringed. Again this proposed Orphan Work Legislation will in effect negate this needed protection.

F. Black Markets & Theft, etc.

A key issue that folks are not understanding is that this legislation will create and fuel a new black market of so called orphaned works- much like we see in the antiquities market. There will be a harvesting of art work of all disciplines in order to create inventory for this "orphan works" market. This legislation will also make it legal to do this type of harvesting with little legal or financial consequence (now the way current copyright law is- there are heavy penalties for illegally infringing someone's copyright). NO WHERE IN THE LEGISLATION does it state that someone has to prove that they obtained the "orphan work" legally and that they have the right of provenance. Most accredited libraries, archives, and museums adhere to these standards (or at least try to - some have a better vetting process and track record than others). Of note is that the E.U. has adopted both a great orphan works "legislation" and the E.U. has also taken a much stronger position, as advocated by the archeologists community, in addressing the antiquity black market. Sadly, U.S. museums have not done so in regard to the antiquity black market (they adopted new guidelines June 08 that are not as strong as the E.U.'s) and unfortunately they are backing the current version of the orphan works legislation.

It needs to be pointed out that the Native American Congress was not consulted on this legislation, and that many Native American art and cultural works cannot be photographed or even exhibited in certain ways because they are sacred objects. Native American countries and tribes face the constant looting and miss use of their works/heritage. Also a large portion of the Native American work in collections was obtained illegally or under problematic or questionable circumstances. Currently there is much work being done to ensure that tribes can repatriate, use their cultural materials and/or have a say in how their cultural materials are kept in present accredited collections. Clearly the drafters of this legislation did not review model protocols for interacting with Native American art work/culture and art work in general.(Protocol for Native American Archival Materials-http://www2.nau.edu/libnap-p/protocols.html )

In this day and age identity theft is a real and growing concern for all of us. The same theft does and can happen to art work of all disciplines via people downloading images, music, text from the internet or using technology "to take art work" (i.e. scan in someone's drawing from their sketch book). AGAIN No where in this orphan works legislation does it stipulate that the "infringer" must prove that they obtained the work properly and legally, establish provenance of the material , and "that the possessor obtained the legal rights of disposition". Nor does it ask the infringer to disclose where and how they got the work ie provenance (important information for advocates and the government to track trends-ie the person bought it at a student art fair, from a person in a homeless shelter). Museums, libraries, and archives all abide by these requirements to ensure they are not acquiring counterfeit or stolen works.

This Orphan Works Legislation will create a new black/stolen orphan works art market and it will create a new commercial market for derivative works created from "orphaned" works (and/or orphaned works that are not actually true orphaned works). This will clearly negatively impact artists of all disciplines, small businesses, and existing commercial markets.

References:: Protocol for Native American Archival Materials-http://www2.nau.edu/libnap-p/protocols.html ; Museums Set Stricter Guidelines for Acquiring Antiquities, New York Times, 6/4/08; U.S. Museum guidelines defend ties to collectors, International Herald Tribune, 3/1/06; Possession Order. Tom Flynn 2006 -http://msn-list.te.verweg.com/2006-April/004891.html

G. Proposed Data Bases/ Registries

The AF is not in favor of the proposed certified private visual databases proposed in the legislation. As made clear in Section 1, a majority of artists of all disciplines are low income and can not afford to officially copyright their work due the cost and also due to the volume of the work they have created (some artists have thousands of images/works). Nor can many artists afford to pay for their work to be in databases/ registries and many artists do not have the technology and/or the skills to digitize their work. Many of the artists in our state are having difficulty affording the co-pays (and premiums) for their subsidized health insurance, therefore it is clear they will not be able to afford to comply with the Orphan works legislation/data base component even if they wanted to.

In the 1990's, the AF worked to make sure that Massachusetts artists were included in the Virtual Collection- a project of the Estate Project for Artist with AIDS. It was established to archive the work of artists living with HIV/AIDS or artists who have died from the disease. Most of the artists we worked with could not afford to have slides/images taken of their work. The Estate Project raised the needed funds to cover materials/technology costs and fellow photographers donated their time to help archive the art work (www.artistswithaids.org).

The certified private data base component of the orphan work legislation is very problematic on many levels: 1) that they are not free to artists. 2) most artists will not be able to archive ALL of their work (visual artists and craft artists make high volumes of work and it will be next to impossible to archive all of their work digitally). 3) many artists lack the time, skills, finances, Internet or adequate Internet access, and/or technology to digitize their work. 4) private data bases do not have to be accountable to the public.

H. Cost of Compliance and Policing

It is clear that most artists and artists owned small businesses will not be able to protect themselves if this law goes into effect. Most artists usually cannot afford to officially copyright their work and nor will they be able to afford the time or money to register their works with the privately held databases. Artists will not be able to spend the time "to police" to see if their work has been deemed an orphaned work, whether they have officially filed a copyright for the work with the government or not (ie request the information from the Copyright office as required by the legislation to see if their work was infringed, etc.). Nor will most artists and small businesses be able to "hire" the legal help to do so.

3. Conclusion

This Orphan Works Legislation as it is now written will sadly leave our artists of all disciplines and artists run small businesses more vulnerable then ever before. Do we need to address the issue of true orphaned works? Yes we do. Is this legislation the way to do so? No it is not. Why not amend the fair use section of the copyright law to clearly define true orphaned works, amend it to allow our accredited cultural partners and allies to use the true orphaned works they have in their collections for educational purposes only (as well as amend it for the photo-retouching for a clearly defined personal use), and at the same time explicitly ban commercial use of orphaned work? Gone would be the need for certified private visual databases and for the paperwork/court ruling to infringe orphaned work, while at the same time it would not undermine current needed copyright protection, the moral rights of artists, and our current commercial markets.

-Kathleen Bitetti Artist & Executive Director The Artists Foundation 516 East Second St. #49 Boston MA 02127 www.artistsfoundation.org
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