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- Editorial: Calling All Orphans: The So-Called "Orphan Works" Bill and You
Editorial: Calling All Orphans: The So-Called "Orphan Works" Bill and You
- By Melissa Wilson
- Published 04/14/2008
- Editorials
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Melissa Wilson
View all articles by Melissa Wilson
Did you hear Congress is trying to steal your fanart? Then you've probably already read Mark Simon's article on the subject. If you haven't heard yet, be glad. The kerfuffle stems around Simon's contention that the so-called "Orphan Works Act" will chase you down the alley, beat you up, and steal your copyright. The information he is reporting comes from the Illustrators' Partnership of America (IPA). Simon conducted an interview with IPA's Brad Holland, who went into detail about the chilling effects of the new legislation.
The problem is that there's no legislation. The "Orphan Works Act of 2006" idled in the Judiciary committee and died, and it is from this document that the uproar is coming. Opponents claim that new legislation is pending, although no bill has yet been introduced to Congress. Opponents also claim that artists who found their work infringed would not be reimbursed for legal time and trouble to prove their prior claim on the work, despite the 2006 bill's actual wording:
"If the infringer fails to negotiate in good faith with the owner of the infringed work regarding the amount of reasonable compensation for the use of the infringed work, the court may award full costs, including a reasonable attorney’s fee, against the infringer under section 505, subject to section 412."
The 2006 bill was designed so that works such as photographs and illustrations whose origins cannot be determined could de facto pass into the public domain. Museums, schools and religious institutions were specificaly named as beneficiaries of the legislation.
More, there was wording to protect the copyright holder, should s/he discover the use of the work, including legislating fair payment for the use. This bill is no longer being considered, although subsequent bills along the same lines will no doubt have similar wording.
Do you have to worry? Not so much. First, despite the angry flurry of protest sparked by Simon's article, there is no actual legislation pending. Go check the Library of Congress. Second, if/when a bill is submitted, it will likely die in committee as the subject has the last three times it's come up. Third, artists will continue to have copyright of their own work and, exactly like things are now, will be the ones responsible for monitoring that copyright diligently. Artists of all stripes may feel free to register their works with the United States Copyright Office, even now.
In short: tempest, meet teapot.
(Additional information by Kynn and Radio Free Meredith)
Edit to Add: Since the Internet is and always has been populated by people who don't click follow-up links to see later articles on the same topic, you can find more discussion on the bills here. Since the Internet is also populated by people who don't check out the main pages of sites they visit before they start commenting, you should also visit our front page to discover that we are a fan-based news site. When it comes to copyright law, we care about fanfiction and fanart and how the current laws have grey areas in which those of us engaging in transformative works can exist. We're big fans of the public domain, and believe that Disney has ruined it for everyone. If you're not drawing adult pictures of cartoon characters, we're probably not the website you want to read regarding federal law. Just a public service announcement.
The problem is that there's no legislation. The "Orphan Works Act of 2006" idled in the Judiciary committee and died, and it is from this document that the uproar is coming. Opponents claim that new legislation is pending, although no bill has yet been introduced to Congress. Opponents also claim that artists who found their work infringed would not be reimbursed for legal time and trouble to prove their prior claim on the work, despite the 2006 bill's actual wording:
"If the infringer fails to negotiate in good faith with the owner of the infringed work regarding the amount of reasonable compensation for the use of the infringed work, the court may award full costs, including a reasonable attorney’s fee, against the infringer under section 505, subject to section 412."
The 2006 bill was designed so that works such as photographs and illustrations whose origins cannot be determined could de facto pass into the public domain. Museums, schools and religious institutions were specificaly named as beneficiaries of the legislation.
Do you have to worry? Not so much. First, despite the angry flurry of protest sparked by Simon's article, there is no actual legislation pending. Go check the Library of Congress. Second, if/when a bill is submitted, it will likely die in committee as the subject has the last three times it's come up. Third, artists will continue to have copyright of their own work and, exactly like things are now, will be the ones responsible for monitoring that copyright diligently. Artists of all stripes may feel free to register their works with the United States Copyright Office, even now.
In short: tempest, meet teapot.
(Additional information by Kynn and Radio Free Meredith)
Edit to Add: Since the Internet is and always has been populated by people who don't click follow-up links to see later articles on the same topic, you can find more discussion on the bills here. Since the Internet is also populated by people who don't check out the main pages of sites they visit before they start commenting, you should also visit our front page to discover that we are a fan-based news site. When it comes to copyright law, we care about fanfiction and fanart and how the current laws have grey areas in which those of us engaging in transformative works can exist. We're big fans of the public domain, and believe that Disney has ruined it for everyone. If you're not drawing adult pictures of cartoon characters, we're probably not the website you want to read regarding federal law. Just a public service announcement.
Spread The Word
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Comments
Comment #1 (Posted by Corey Haraman)
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Mark Simon's article was ridiculously biased and sent a pulse of hysteria through the artist community, however the orphan works bill isn't dead. It's alive and still trying to make it's way through our legislation. The proposal has been amended many times and both the artistic community and legislators are still laboring over the language because as it stands now the proposed legislation is very flawed.
I agree with the good intentions this bill was initiated with. Museums, non profits and schools should have access to works for the enrichment of our society but the proposed amendment to the copyright law in the orphan works bill has many loopholes that can be potentially detrimental to those who earn a living off of their artistic skills.
Passing this off as dead and done is, to be blunt, very wrong. It isn't dead, it's still very alive. As a working artist I've been keeping my eye on this bill for over a year now. It has the potential to dramatically change the business of art and it is an important piece of legislation that will probably be passed in one form or another one day. Writing it off is just silly.
Comment #2 (Posted by anon)
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Your article is sorely misinformed, misleading and should be removed.
Comment #3 (Posted by Melissa)
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There is no bill. You can check for yourselves at the Libray of Congress. There *was* a bill. It's not there anymore. You can be worried all you like, but until there's actually something written and brought before Congress, it's not an issue. Even the IPA website admits they're complaining about a bill whose text doesn't exist and that they're guessing what it's going to say. They seem to be guessing the worst-case scenario on all factors. If you'd like to spend your time worrying about that, your call. But until there's an actual bill (with an actual HR number and then another one with an actual S number) you're guessing too. Calling something that doesn't exist a "bill" manages to be wrong, misleading and silly all in one go.
Comment #4 (Posted by Angry Artist)
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There is a bill in the making. WTF are you guys trying disinform artists!
Comment #5 (Posted by Melissa)
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Things I still haven't seen from anyone involved: a. an actual bill, or b. information about a proposed bill that isn't coming from IPA. If you've got actual information from a reliable source, feel free to bring it up and I'll take a look.
Comment #6 (Posted by cjovalle)
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There is a bill now.
I'm still not sure why Mark Simon believes what he does about the bill- even when referring to the 2006 version. It never did the things he claimed it would.
Comment #7 (Posted by Lee Sonko)
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It appears to be a bill in the house and senate, "The Shawn Bentley Orphan Works Act of 2008" H.R.5889 and S.2913. I dunno if it's dead or not but it was certainly re-introduced this year.
Comment #8 (Posted by Beverly)
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H.R.5889
S.2913
(thomas.loc.gov)
UPDATE - May 7, 2008
The House Intellectual Property Subcommittee
votes in favor of H.R. 5889
"Orphan works legislation could be signed into law by the President as early as the fall of 2008".
(orphanworks.net)
Comment #9 (Posted by Krista)
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Given the date this article was written I can understand your skepticism, but on April 24th two versions of this bill were introduced to the House and Senate:
S. 2913: Shawn Bentley Orphan Works Act of 2008
H.R. 5889: Orphan Works Act of 2008
As far as I know both are still pending and have not been brought up yet for a vote. Information on the progress (or hopefully lack thereof) can be found here:
http://www.govtrack.us/congress/bill.xpd?bill=s110-2913
http://www.govtrack.us/congress/bill.xpd?bill=h110-5889
Comment #10 (Posted by Green)
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I am so shocked at how many are deceived by this Mark Simon. Shame on him.
Here's an example of how this Act would benefit artists:
A piece of art was illegally copied and mass produced. It was later sold to third parties for retail sale. Profits to the rightful owner were never to be recovered under current law. Too many pieces exist, in a way, turning the piece into the public domain category.
If the Orphan Works Act were law, the art piece would still belong to the copyright owner, regardless of how many pieces existed. All that the owner needs is proof of ownership, and in this case, he has plenty of solid proof.
