Derivative Abuse

The Orphan Works bill contains a terrible new provision that gives an infringer exclusive rights to the entirety of an orphaned work if the infringer uses that work in a “derivative work.” A derivative work is one made by incorporating the work of others.

House negotiators have removed the requirement that infringed art be used in a derivative that contains substantial original expression. This means an infringer could now simply crop or desaturate your work, then use it again with complete immunity from prosecution. Here’s how the law would change:

Under current copyright law, you have exclusive rights to the original work you create. This includes the right to prepare new, derivative works from your old works, or to authorize (or refuse to authorize) others to do so. If someone creates a derivative work by infringing yours, current law doesn’t entitle them to copyright protection. Here’s what the current law says:

103(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but 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.
http://straylight.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000103----000-.html#a

But under the Orphan Works amendment, an infringer could now confiscate this exclusive right - not by creating a substantially new work — but simply by infringing yours. The infringer would receive full copyright protection. Here’s what the bill says:

“(d) COPYRIGHT FOR DERIVATIVE WORKS. —Notwithstanding section 103(a), the infringing use of a work in accordance with this section shall not limit or affect the copyright protection for a work that uses the infringed work.’’ http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00214

This measure will have far reaching implications. For example, it will undermine your ability to negotiate exclusive rights with clients —particularly buyouts for advertising or institutional clients - because neither party in a business transaction can guarantee exclusivity.

It will also let opportunists capture the full rights to existing work. Stockhouses, for example could harvest “orphan” works, modify the work slightly and claim it as their own. These “derivative works” would then become the wholly-owned, fully-protected copyrighted work of the stockhouse.

And free culture advocates could now appropriate orphaned work and embed it with the viral Creative Commons share-alike license. See Orphaned Art and a Copyright Virus, http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00190

This provision has been expanded from the original Copyright Office proposal. It was added during closed door negotiations. Put it at the head of your list of things that are wrong with this entire Orphan Works project.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov

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