The Orphan Works Landscape

The New “Improved” Orphan Works bill is due out next week. We expect it to be much the same as the last one. Unfortunately, the Orphan Works landscape has changed.

Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.

Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?

If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do. Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.

We believe the way to speak with one voice is not to submit to a bill that would:
- Create uncertainty in commercial markets;
- Nullify the exclusive right of copyright and therefore
- Reduce the value of your work;
- Threaten the privacy protection afforded by current copyright law; and
- Invite retaliation from abroad.

Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.

Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.

Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.