The industry as seen by top designers.
The Orphan Works Bills
A threat to designers everywhere..
by Joanne Fink (May 5, 2008)
(Note: The following is a report on newly introduced
legislation in Congress that can have serious ramifications for
designers, publishers, and others in every creative industry.
Designer Joanne Fink wrote the following in an email which CLN
received Apr. 29. CLN will keep you updated on the status of the
Just thought I’d chime in on the Orphan Works situation. As you
probably know, last Friday both the Senate and House introduced
variations of the same bill: The Shawn Bentley Orphan Acts of
2008 (S. 2913) and The Orphan Works Act of 2008 (H.R. 5889). If
these bills pass, they will have devastating consequences for visual
Having been involved in strategy sessions for the last few days
with Brad Holland (Illustrator’s Partnership) and others, let me
outline what you can do that would be helpful.
1. Write a letter to your congressional House leader and Senators
stating your opposition to the bills. Send the letter both by e-mail
2. Help raise awareness about the potential consequences of this
legislation, and ask everyone you know to write and send letters.
A number of groups which oppose this legislation are
collaborating on creating a website which will enable you to e-mail
your congressional leaders with the push of button. It will also
contain sample letters. I will post the link as soon as the site is
The main reasons to object to this legislation are listed below.
In case any of you want to start work on your letters before the
sample letters are published, I’ve also included additional
information to help you explain and clarify these objections.
1. It changes the 1976 U.S. Copyright Act (enacted in 1978), and
makes it virtually impossible for artists to protect their work. It
basically allows anyone to use a design without the copyright holder’s
Under current law, you receive basic copyright protection even if
you don’t register your work. Under Orphan Works law your work
could be declared an orphan even if you have registered it. Congress,
in enacting the Copyright Act of 1976, provided that copyright
exists in the creation of any work that is copyrightable subject
matter, regardless of whether or not the owner has performed any
legal formalities, such as registration, or copyright notices, or
taken any steps to protect or defend the copyright. Since 1978 (when
it was enacted) many creators have relied upon the Copyright Act of
1976, and employed business practices based upon the protections it
offered. The proposed Orphan Works Act of 2008 would have the effect
of depriving certain creators of the ability to enforce their
copyrights because they did not take steps that the Copyright Act of
1976 did not require them to take. In essence, it will give
infringers the legal means to use a design without the copyright
2. It requires artists to attempt to protect their work by
registering it with a digital data base system (presumably for a
fee, in addition to the copyright filing fee) – when no such
The proposed legislation is predicated on the establishment of
private, profit making registries that would establish databases of
digital versions of artworks and provide a place for infringers to
try to locate the artist, BUT it will be enacted whether or not
these data bases ever come into existence. This will relieve the
infringer of liability if he simply attempts a search that cannot
possibly be performed successfully.
In addition, the legislation places no limit on the number of
these registries or the prices they would charge. The burden of
paying for digitization and depositing the digitized copy with the
private registry would presumably fall entirely on the artist, and
even if an image is contained in the registry, as long as the
infringer "looks" without finding it, the infringement is
allowed. There is no liability imposed for the failure of a
database to find an image registered in that database when it is
searched, and no requirement that all available databases be
searched, thus potentially requiring multiple registrations (and
multiple registration fees). Also there are no safeguards to prevent
any person or company from fraudulently registering work they do not
3. It eliminates statutory damages wherever an infringer can
successfully claim an orphan works defense, thus eliminating the
only tool the law provides to prevent deliberate infringement.
Current law almost certainly deters rampant infringement because
the present remedies – damages of up to $150,000 per infringing
article – make infringement risky. By "limiting
remedies," the Orphan Works amendment will effectively create a
no-fault license to infringe.
4. It allows for an infringer to create – and copyright – a
derivative work from the original design.
Under current law, the right to create a derivative work is one
of an artist’s exclusive rights. Section103(a) says a user can’t
copyright a derivative image that he’s infringed. "Protection
for a work employing preexisting material in which copyright
subsists does not extend to any part of the work in which such
material has been used unlawfully." Under the proposed new
bills, since the entirety of an infringed work can be included in a
derivative use, then the copyright of the derivative will amount to
a copyright of the original. This would be a de facto capture of new
exclusive rights by the infringer. In other words, these bills
allow infringers to make and copyright derivatives – even if the
copyright holder to the original work objects.
If this legislation passes it would mean a return to pre-1976
U.S. Copyright Act when many artists' works fell into the public
domain because they could not afford to comply with the formalities
of registration as a condition of copyright protection. This
violates the trust under which American artists have worked for the
last 30 years, and nullifies our U.S. Copyright registrations.
Further, it is against the Berne Convention, and invites retaliation
from around the world because international artists' works are just
as vulnerable to infringement under the U.S. Orphan Works Act.
Now let me recap the current situation:
The Senate has only given a few days for comments on the bill to
be made; they are due Wednesday, April 30th. The House has not
specified a time-frame, and may give as little as 24 hours notice
before closing the window for comments. There are several loosely
allied groups which are opposing the legislation. These include The
Illustrator’s Partnership (illustrators), The Artists’ Rights
Society (fine artists), The Advertising Photographers of America
(photographers), the Artists Foundation (fine artists), the Textile
coalition (4 textile groups) and the Industry Coalition (whose
members include the Craft and Hobby Association and George Little
Management). During an OW strategy session Friday afternoon, Corrine
Kevorkian, counsel for textile giant F. Shumacher, shared that the
Textile coalition intends to recommend to the Senate that they adopt
the House version. If this happens, the Textile industry will be
spared the draconian impact of the Orphan Works Act because the
House version exempts useful articles (see #1 below). She also
intends to emphasize that the legislation shouldn’t take effect
until the electronic data bases actually exist.
Although the bills are similar, there are some important
differences to note. Both are devastating to all visual artists, but
the House bill is somewhat less objectionable. Here are the three
1. The House bill includes an exception for useful articles,
which (as far as I can determine) means that products (such as
textiles and mugs) which are functional whether or not design has
been applied to them, will not be impacted by this legislation.
2. The House bill also requires that manufacturers file their
intention to use an image before they can use it --although it does
not (a) specify a time period or method for doing so, (b) does not
require an image to be included, only a verbal description (the Mona
Lisa, for example could be described as "a dark-haired woman
with an unusual expression" which would supposedly allow
Leonardo to identify his work), and (c) does not require the filings
to be readily searchable to allow an artist to monitor unauthorized
uses of his/her work.
3. The House bill allows for a longer (possible) time period
before implementation: January 1, 2013 vs. the Senate bill which
uses the date of January 1, 2011. Unfortunately both bills are
scheduled to take effect on the earlier of: "the date
on which the Copyright Office certifies under section 3 at least 2
separate and independent searchable, comprehensive, electronic
databases, that allow for searches of copyrighted works that are
pictorial, graphic and sculptural works, and are available to the
public through the Internet; or the January 1st, 2011 or 2013
listed by the respective bills. This means that if there is no
visually searchable database operable before the date(s) listed, the
legislation goes into effect anyway!
If you would like additional information on the potential impact
of this legislation, you can learn more by
a. Reviewing the submission to the House by the Illustrator’s
b. Listening to Brad Holland’s informative webcast: www.sellyourtvconceptnow.com/orphan.html.
This is a very serious situation, and will require a concerted
effort on all of our parts to stop it. I’m glad to see so much
posting going on… and I believe that together we CAN make a
difference. I’ll be in touch as soon as I have more information.
This may be forwarded in its entirety to any interested parties.