Thursday, May 28, 2009

Artists BEWARE of The Orphan Works bill!!!

     I've been clogging-up the discussions boards of various LinkedIn groups with talk of the Orphan Works bill or more affectionatelyHR 5889, the 2008 remix.  What is the Orphan Works bill you ask?  The Orphan Works bill is without question the single most detrimental piece of legislation to independent artists the world has EVER seen and this isn't even a thorough list of the reasons why it is so dangerous.  If you would like to follow this bill more closely, please visit, there's a convenient form letter to your district representative opposing this bill.
     I was first made aware of this bill my junior year of college when 30+ year veteran of the illustration field, Brad Holland came to speak at the University of Arts back in 2005.  The Orphan Works bill purposes that to have full protection/ownership of a work under the guidelines of this bill, it will be mandatory for artists to have all works copyrighted or they could be deemed "orphaned".  After the prospective client performs a "diligent search" and cannot find the copyright holder of the image (it's pretty easy to separate image and source code, huh?), the distraught client can then use the image however they intend, but if the copyright holder is found, restitution must be made to the author of the work/copyright holder and litigation ensues.  Hold on, how many times have you gone into a shoe store, put on the shoes, left the store wearing the shoes and if the shoe store happens to notice that you left without paying for the shoes, you'll just settle-up later?  Yeah, reverse engineering commerce doesn't make much sense to me either.  And for lack of any negotiation or contract, who sets the amount of restitution?  Is it at fair market value?  What if the usage has already broken your code of ethics?  Let's say your image is used in a cigarette ad and you oppose the idea of promoting smoking; no amount of restitution would soothe the damage done to your morals. Orphaned works may then be copyrighted by a third party (oh, say, like a Getty Images) and they would own the rights to distribute the images.  The bill goes on to say that it's hard for prospective clients to acquire the services of artists since not all artists works are signed... since we artists are oh so elusive.  I should point-out that there's an entire industry of professionals whose livelihood is based on connecting creative professions and those that want to retain their services, so this argument is in fact bullshit.
    The bill had it's infancy around 2002 and is still presently up for discussion.  Huh, that's seven years a bill has been up for consideration... if entire industries have been opposed to it, why is it even still up for discussion?  Enter the lobbyists:  what do Getty Images, Corbis and Google all have in common?  They would all really benefit from the loopholes that you could fly a jumbo jet through that this legislation creates.  As an interesting side note, if you Google "orphan works", after all the anti- pages, you'll notice that a lot of domain names have already been purchased with the intention to distribute, for a fee, our poor orphaned works.

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