Your Creation – Make Sure You Keep Your Rights!

Copyright – for some it’s just a boring topic for lawyers, to others it’s a bread and butter issue while still others believe it has nothing to do with their world. Uh, oh – wrong! If you take photos of your family, friends, and all your myriad activities and events then post them to an online photo gallery, copyright issues are very much a part of your world. Hopefully, you already know there are individuals and corporations who scan the ‘net looking for images to use in commercial marketing campaigns both online and in other media and on individual websites and/of blogs. There are also organizations who promote contests or competitions that strip you of your copyright to your entry in their promotion. Your entry is then used to build the organization’s image gallery where commercial users can purchase/license the use of an image. You get nothing.

Under a proposed revision (The Orphan Works Act of 2008, Bill # H.R.5889) to the copyright laws all visual artists, amateur or professional, will lose many current rights. The Shawn Bentley Orphan Works Act of 2008, Bill # S.2913 is the title of the bill in the Senate. See Senate Bill. The following is a summary of the House bill as prepared by the Congressional Research Service:

4/24/2008–Introduced.

Orphan Works Act of 2008 – Limits the remedies in a civil action brought for infringement of copyright in an orphan work if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; (2) a Notice of Use was filed with the Register of Copyrights before the work was used; and (3) the infringing use of the work provided attribution to the author and owner of the copyright, if known.

Permits an award of reasonable compensation for the use of the infringed work, except if: (1) the infringement is performed without any commercial advantage and for primarily a charitable, religious, scholarly, or educational purpose; and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement.

Directs the Register of Copyrights to: (1) undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection; and (2) study and report to Congress on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.

Directs the Comptroller General to study and report to Congress on the function of the deposit requirement in the copyright registration system .

GovTrack.us. H.R. 5889–110th Congress (2008): Orphan Works Act of 2008, GovTrack.us (database of federal legislation) <http://www.govtrack.us/congress/bill.xpd?tab=summary&bill=h110-5889> (accessed Aug 15, 2008)

“Okay,” you say, “I don’t see how that has anything to do with me.” Oh, and if you live outside the U.S. this definitely affects you also. Well, then let’s see what the pros are saying. Take a look at the following link from Illustrators Partnership of America regarding current legislation for analysis and overview which in part states:

The Orphan Works Act will “solve the Orphan Works problem” by classing as an orphan any work whose author any infringer can successfully define as one. This will result in orphan status being assigned to any work, despite its age, even where the artist is alive, working and easily locatable by others. To repeat: even if 10 users (or 100) can find a given artist, this bill will allow a single infringer who can defend in court his failure to find the artist, to establish that the artist’s work was an orphan for legal purposes. This would include any works, from professional paintings to vacation photos, including any pictures that reside or have ever resided on the internet.

For example, say you post your favorite photo of your baby girl and, unknowingly, the image you use is large enough for use in print or is manipulated for use. Well, along comes Bobby Imagegrabber who sees the photo and thinks, “Wow, this will be great in the naughty baby diaper campaign!” He copies and/or downloads your photo (cause I bet you don’t have any protection on those pix, do you?) to show to the marketing team. The team loves the shot and moves into action with all their myriad players so that as you’re driving down the Expressway three months later you see your darling baby girl in all her glory on the side of a bus.

My sources for this post are Sam D’Amico « A Photographer’s Blog, GovTrack.us, and www.illustratorspartnership.org (sign the petition here). You may also want to check out Orphan Works Resource Page for Artists
by Illustrators’ Partnership of America. This is a link that shows all the organizations that oppose the Orphan Works Bill. Below is the text of a letter sent to my House Representative Jim Moran (D-VA) which was modified slightly and sent to Senator John W. Warner (R-VA) and Senator James Webb (D-VA).

————————————————–

The Honorable James P. Moran
House of Representatives
2239 Rayburn House Office Building
Washington, DC 20515-4608

Re: The Orphan Works Act of 2008-Bill # H.R.5889

Dear Representative Moran:

The Orphan Works Act of 2008, Bill # H.R.5889 is an absolutely horrible act which will take income from small business owners, i.e. photographers and other visual artists. This bill is entirely for the purpose of enriching corporations who do not want to pay creators for their creative abilities, time, imagination, and just plain work. This bill will essentially inconvenience and impoverish hard-working creative people and extinguish any lasting legacy that could be left to our descendants. Additionally, the bill totally minimizes visual artists, our right to maintain control over our own creations, and the creative process.

As a writer and photographer, I believe the passage of this bill will constitute government-sanctioned corporate theft. I strongly encourage you to do whatever is necessary to make this bill go away. Artists pay taxes through 9-5 jobs, purchases of goods and materials, property, and in every way as other constituents. Would you tell the baker that because he didn’t register his recipe in a database that has not yet been created (and not created 30 years ago when he first made the buns) or did not put his buns in a bag with his name on it that he no longer has the right to say that the buns are his creation and to be paid for the buns?

©Caryn I. McLaine 2008