The Orphan Works Act of 2006

The 2006 legislative session will have a bill before called the “Orphan Works Act” , specifically H.R. 5439, that should (and is) creating uproar in the world of illustration, art, photography, and other intellectual and creative property field. Internet giants like Google are lobbying hard for the act to be passed, because it represents a huge sum of money in savings to publishers and media who use copyrighted materials for their businesses, especially on the Internet.

To sum up the Orphan Works Act, it would provide anyone the legal right to use an image, artwork or certain??ᬨ‚Ćother intellectual properties simply because they could not find the owner of the copyright to said item through a ‘reasonably diligent’ effort. To give you an example, say someone comes across an illustration done by some artist on the Internet. They need only make some small attempt to find the artist in question. If that proved unsuccessful, they are free to use the work without payment because it’s considered “orphaned” or abandoned. Some effort is made in the bill to define what “reasonably diligent” entails, but not nearly enough. Basically anyone can use any piece of art, photo or such they come across for any purpose as long as they can demonstrate they ‘tried’ to find the creator.

The worst part is that the bill also places a limit on what the copyright holder of the art can recover from someone who uses it without contacting them. That is specifically limited to “reasonable compensation” for the actual use. Attorney’s fees or “full costs” MAY BE awarded by the courts, but there is little to no language pertaining to paying damages, and even a specific line that prevents such damages to be collected from an infringer if they show any diligence in finding the copyright owner. Returning to our example, say the artist of that illustration manages to discover their work was used, and goes after the person who used it. The best that artist can hope for is that the court decided the infringer did not make a “diligent enough” search for the artist. Then they can collect only what is deemed “reasonable compensation”. This is ridiculous. In essence, an infringer can use any image it chooses without even searching for the creator, and then IF they get caught they have to pay only what they should have paid in the first place. If that is the case, why would ANY image user bother contacting the creator to use an image??? They might as well take their chances and use the image without any search, and then IF they get caught they don’t even have to negotiate with the artist for the payment. That option is taken away from the artist, apparently, and handed to the courts to decide.

The entire law is ludicrous. Say you live on Sesame Street, and you notice a brand new car parked on the street near your house. You go out to the car, and look it over. You find no identification in the car. I guess that means it’s abandoned and you can go ahead and drive it away, right? According to the Orphan Works Act, that’s exactly what you can do. Then, if the owner sees you driving it and calls the cops, they make you pay the owner a little rental fee and you go free. No penalty, no foul. The entire burden is placed on the car owner, who must apparently sear his name and phone number into the dashboard with a soldering iron. Say the car was stolen originally, and left by the theives. Is it then fair game for you? That very case would happen often on the internet, as “legitimate” users of images may find one they want to use on a website who knowingly infringed on the image, and did not leave any indicators as to the original creator.

It’s easy to see why illustrators and members of the creative community are upset over this bill. I can see the argument that there are many works of art and photos out there who’s copyright holders are nowhere to be found, but that doesn’t mean they do not exist. Someone created that piece of art, and they should be protected by copyrights. Sorry if that means publishers and Internet media moguls can’t farm cyberspace for all the free images they want, but the protection of the rights of creators to earn a living from their talents are more important than making Google more profitable. The ultimate result of the passing of such a bill is not only the decimation of copyright protection for existing works, but the direct impact on the earning of the creators who should have been contracted to create NEW works to fulfill the needs of the image users. The Orphan Works Act turns the entire Internet into a giant free stockhouse, or more accurately a low-risk-of-needing-to-pay stockhouse. The illustration and creative industry is having a hard enough time with stockhouses and other challenges to be able to lose work to misguided special interest legislation.

Visit the Illustrator’s Partnership web site for more information, and to find out how you can help stop the madness.