Last week, The Senate passed “The Shawn Bentley Orphan Works Act (S. 2913)” by hotline. The House of Representatives is slated to take on their version of the legislation “The Orphan Works Act” (H.R. 5889) very soon! This legislation was origionally created to help Museums and Libraries gain the ability to use and publicise their collections of art where the copyright holder cannot be reached, but lobbiests for large corporations have backed the bill and persuaded their congressmen and women to support the bill also. The language in the bill has taken a turn for the worse since its origination and could be detremental to ALL creative individuals.

PRIVITIZING COPYRIGHT?
With the meltdown on Wall Street, I do not think it’s wise for Congress to concentrate our Nation’s Copyright Wealth in the hands of a few privately owned corporate databases. The Contents of these databases would be more valuable than secure banking information. Yet this bill would compel me to risk my life’s work to subsidize their start-up. That means it would be my assets, and those of every creative copyright holder, at risk in the event of their failure or mismanagement. This bill would socialize the expense of copyright protection while privitizing the profit of creative endeavors. Copyright owners neither want nor need this legislation.

What is an “Orphan Work”?
The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate with what the infringer himself decides has been a “reasonably diligent search.” In a radical departure from existing copyright law and business practice, the U.S. Copyright Office has proposed that Congress grant such infringers freedom to ignore the rights of the author and use the work for any purpose, including commercial usage. In the case of visual art, the word “author” means “artist.”

This proposal goes far beyond current concepts of fair use. As acknowledged by the Register of Copyrights it is not designed to deal with the special situations of non profit museums, libraries and archives. It is written so broadly that it will expose new works to infringement, even where the author is alive, in business, and licensing the work.

The bill would substantially limit the copyright holder’s ability to recover financially or protect the work, even if the work was registered with the U.S. Copyright Office prior to infringement.

The bill has a disproportionate impact on visual artists because it is common for an artist’s work to be published without credit lines or because credit lines can be removed by others for feckless or unscrupulous reasons. This is especially true of art published in the Internet Age.

Coerced Registration
The Orphan Works Act would force artists to risk their lives’ work to subsidize the start-up ventures of private, profit making registries, using untested image recognition technology and untried business models. These models would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who create the art.

The most common scenario of orphaning in visual art is the unmarked image. There is only one way to identify the artist belonging to an unmarked image. That would be to match the art against an image-recognition database where the art resides with intact authorship information.

These databases would become one-stop shopping centers for infringers to search for royalty-free art. Any images not found in the registries could be considered orphans.

There is no limit to the number of these registries nor the prices they would charge artists for the coerced registration of their work.

The artist would bear the financial burden of paying for digitizing and depositing the digitized copy with the commercial registries.

Almost all visual artists such as painters, illustrators and photographers are self employed. The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works. The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore countless working artists would find countless existing works orphaned from the moment they create them.

The Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work automatically becoming an “orphan” and subject to legal infringement.

FOR MORE DETAILS ON THIS BILL PLEASE VISIT:
http://capwiz.com/illustratorspartnership/issues/bills/?bill=11320236

A CALL TO ACTION!!! WE NEED YOUR HELP!

PLEASE CONTACT YOUR SENATORS AND REPRESENTATIVES TO OPPOSE THIS ORPHAN WORKS LEGISLATION!

HERE’S A QUICK AND EASY LINK TO CONTACT YOUR REPRESENATIVES:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

About the author

Kevin Michael Reed
Kevin Michael Reed (Google+, Facebook) is a fashion & beauty photographer and producer/director based in New York City and Los Angeles, CA. He is the President/CEO of RedFOG Visual Media, a production company in New York City, and a partner in Passion of Photography, Inc, a company dedicated to teaching photographers and sharing our passion through charitable causes. Kevin has lectured and hosted workshops throughout the United States and the world teaching photographers the business and creative sides of photography. (Kevin's Fashion & Beauty Photography Portfolio can be seen here).