June 17, 2009

Orphan Works Legislation

As a designer and artist this legislation scares me. Before I get into why, let me give you some info about both sides.

This is what Marybeth Peters, Register of Copyrights has to say in favor of the legislation.

Based on the recommendation of my office, as published in our 2006 Report on Orphan Works, the legislation would allow good-faith users of copyrighted content to move forward in cases where they wish to license a use but cannot locate the copyright owner after a diligent search. It has benefited from many months of discussion, reflection and fine-tuning under the leadership of Senators Patrick Leahy and Orrin Hatch and Representatives Howard Berman and Lamar Smith.

Here's a bit of the side against the legislation.

If the Orphan Works Act is passed, all of your copyright holdings will be retroactively “orphaned” and lose their associated protections. You will have to register each of them with the federal Copyright Office in order to regain said protection. In addition, any future work of yours will have to be registered as well. This registration will cost a fee, and will likely be too expensive for most individuals to pay.

Here are some links to others with an opinion on the Orphan Legislation.

My opinion.

What if someone sees an illustration on my portfolio site and innocently copies it for their vacation blog. They shouldn't do it, but we all know this happens. They stop updating the blog, time goes by and they change their email. Someone looking for a picture for their project comes across my image and can't find contact information for anyone connected to the blog? They send a few emails, maybe look up a name, no luck. As I understand this law they can now take my image and do anything they want. I don’t think someone should be able to do that after a feeble attempt to find the creator. What if they put it on a product and sell it, worse yet, what if they take the image and use it in connection something I don't agree with?

If an illustration, photo, story, song, blog is found on the web and the owner can't be located it should not be used, it should be assumed it is protected and left alone. If someone really wants to use the work they should hire an artist to create something that will fit their needs. This law will cheat the creator out of control of their work, and cost other artists work because people can just find images, do an unsuccessful search and then use the image as they see fit. When in history has it ever been okay to find something someone has used their talent to create and just take it.

We are at time in human history where technology has made the ability to be creative and share that creativity in ways that are unprecedented, and now we are going to make a law that not only will cost us to be creative with government fees, but also let our creativity be stolen legally.

Please do something to help stop this legislation from becoming law, send a message that creativity is valued.

Learn more about current copyright law,


Kenton Smith said...


A great letter from an Author and Attorney, Linda Kattwinkel, Esq., Intellectual Property and Arts Attorney at Owen, Wickersham & Erickson.

Nick said...

But check out this part:
The Association of American Publishers put it this way: “In those cases where an owner does surface, the point is to put the owner and user to the greatest extent possible, in the respective positions they would have occupied in an ordinary marketplace negotiation at the time of use.”

Kenton Smith said...

Based on the track record of large corporations I don't see a company that used an image where the owner wasn't found suddenly giving back money when the owner shows up later.
What about unethical artists that put images out on the web and hide waiting for their images to be used so they show up and try to collect later.
Thank you for the comment.
Kenton Smith