Dear Representative:

As an organization that represents the profession of the visual fine artist in the Greater Philadelphia area and on behalf of those of our members who are your constituents, Philadelphia/Tri-State Artists Equity is writing to express grave misgivings about the Orphan Works Act (HR 5889). We strongly oppose this bill as currently drafted.
 
We ask that you contact your colleagues on the House Judiciary Committee. Please ask them to support the amendments submitted jointly by the Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America.

Otherwise, please do not vote this bill out of committee until Congress can hold proper hearings into the harm it will do to small businesses, individual creators and ordinary citizens.

As an organization supporting the rights of artists, Artists Equity has the following objections to the Orphan Works 2008 bill:
 
1. It undermines the 1976 U.S. Copyright Act (enacted in 1978), in ways that will make it virtually impossible for artists to protect their work.
 
2. It will burden artists to attempt to protect their work, at their personal expense, by registering it with a digital database system –when no such system currently exists.
 
3. It will eliminate statutory damages wherever an infringer can successfully claim an orphan works defense, thus removing the only tool the law provides artists to deter deliberate infringement.
 
4. It will allow for an infringer (including non-profits) to create—and copyright—a derivative work from an artist’s original illustration—even if the artist, as copyright holder to the original work, objects.
 
5. It will create uncertainty about an artist’s ability to license exclusive rights to a client, or guarantee that original work has not been or will not be infringed. This devalues artists’ work in the marketplace significantly.  
 
In short, the Orphan Works Act fails to properly define the category of orphaned work. It sets the infringer’s bar of due diligence so low that it virtually guarantees abuse.
 
We ask you to consider the harm this bill can do to visual fine artists and their businesses. Please vote against it unless it is amended to precisely define an orphan work as a copyright no longer managed by a rights-holder, and to restrict the Act to usage by the cultural heritage sector.
 
Thank you for the opportunity to comment on the proposed Orphan Works legislation.
 
Sincerely,
 
Karen Kappe, President
Philadelphia/Tri-State Artists Equity

 Introduced on April 24, 2008, The Orphan Works Act of 2008 amends the Copyright Act of 1976 with the intent of limiting the liability of copyright infringers if they conduct a “diligent” search for copyright owners through searchable independent online databases that would be created by the year 2013 and certified by the US Copyright Office.  

Testifying for the bill were documentary filmmaker Ken Burns and the Holocaust Memorial Museum (among others) citing the use of orphan works in preserving cultural heritage. Many visual arts groups oppose the bill because it would shift the burden of copyright protection to the visual artist.

Current Status: While the Senate passed a version September 27th 2008, the House Judiciary Committee failed to act on it before the 110th Congress expired. It is not currently on the legislative calendar (April 8, 2009).

As currently defined Orphaned Works are those whose copyright cannot be established for several reasons: the artist may be deceased, the heirs unknown; the work may never have been registered with the copyright office, or never conventionally published. Historians, researchers, librarians etc would like to use such materials without risking punitive damages from current copy-right infringement law. Non-profit infringement (academics, librarians, etc.) of orphan works has already limited liability under existing law.

 The proposed Orphan Works Act was supposed to apply to true orphan works but is not specific about that. Living artists and current rights-holders of visual, graphic or sculptural works seem to be included in the scope of the law’s language, if not in the stated intentions of its drafters. Those who infringe copyright protection for commercial uses stand to unreasonably benefit from the law as written and need to be excluded. The real need to use orphan works for cultural heritage and preservation purposes does not justify commercial exploitation.

 International law (and American law since 1976) automatically grants copyright protection to a work when it is fixed in any tangible medium of expression, without the need to formally register it with a copyright office.  An artist who has relied on the 1976 law that told artists they need take no special measures to copyright their work would be faced with the costs of digitizing and registering a lifetime of work. Foreign artists could lose copyright protection of their works in America. Even the intended beneficiaries of the law – archives and museums and libraries, etc. –  would be faced with the costs of searching the “independent databases,” and the law is vague and unspecific concerning what criteria make a search “diligent”.  A  NY Times op-ed article called the law “onerous and inefficient.” (NY Times, May 20, 2008)

OWA-Fact Sheet

Artist Equity Members can urge their Representatives to oppose the bill completely or they may urge their Rep. to accept the amendments proposed by the Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America that address the bill’s problems for visual artists.

You can also go to the Orphan Works Opposition Headquarters at owoh.org. and sign a petition.

© 2002-2009 Philadelphia/Tri State Artists Equity Association, Inc.