Orphan Works: A Hobson’s Choice for Artists

Opening statement by Brad Holland, delivered at the Small Business Administration Roundtable: “How Will the Orphan Works Bills Economically Impact Small Entities?”
Conducted August 8, 2008 at the Salmagundi Club, New York City.

Visual artists oppose the Orphan Works Act because it would impose a radically new business model on the licensing of copyrighted work. It would force artists either to entrust their entire life’s work to privately owned commercial databases or see it exposed to widespread infringement.

This Hobson’s Choice would harm artists and collateral small businesses. It would let giant image banks access our commercial inventory and metadata – and enter our commercial markets as clearinghouses to compete with us for our own clients.

I can think of no other field where small business owners can be pressured to supply potential competitors with their content, business data and client contact information. Databases don’t create art. Individuals do. Yet this bill’s provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of art itself.

The bill’s sponsors say it’s merely a small adjustment to copyright law. In fact, its logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.

This exclusive right matters to artists for three reasons:

• Creative control: No one can change your work without your permission;
• Ownership: No one can use your work without your permission;
• Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.

The Orphan Works Act would void that exclusive right:

• It would permit anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work.
• And since you can be infringed without your knowledge anytime, anywhere in the world,
• You could never again guarantee a client that your work has not been – or won’t be – infringed.
• Therefore you could never again guarantee a client the exclusive right to license your work.
• That means that from the moment this bill takes effect, every artist’s commercial inventory would be devalued by 2/3.

The databases this bill would create will be for-profit enterprises. That means to make money, they’ll have to do a lively business identifying orphans for infringers. That means making the databases infringer-friendly. It means promoting infringement. As clients come to rely on these registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans.

The cost of digitizing and registering thousands – or tens of thousands – of individual images will make compliance impossible for most artists. This will cause countless copyrighted works to fall through the cracks and into the public domain. This mass orphaning will be a gold mine for opportunists:

• Some will provide access to orphans as royalty-free work and take their profits in advertising revenue.
• Others will harvest orphans and market them as clip art.
• Others will harvest orphans, alter them slightly to make “derivative works” and register the derivatives as their own copyrighted product.

This will unjustly alter the nature of competition in commercial markets. How many artists - who must create the work they sell - will be able to compete with large internet databases that can provide clients with free or cheap access to the work of others?

This legislation is based on recommendations by the Copyright Office. Yet the Copyright Office studied the specific subject of orphaned work, that is – older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets – a subject the Copyright Office never studied.

This bill’s sponsors have finally acknowledged that it’s not actually an orphan works bill. Instead they’ve re-defined an orphaned work as any work whose author is simply hard to find. Yet this is an irresponsibly broad definition. A professional artist may be accessible to hundreds of clients, but still be inaccessible to millions of other people. Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the theft of private property.

The majority of visual artists are self-employed. We work alone without marketing, administrative and financial support. We receive no salaries, do our own marketing and have no administrative support. We have no safety net. Yet we supply much of the visual material that makes up our popular culture. We have every incentive to see that our work is accessible. But it’s our right to control its use and it’s our prerogative to protect it from exploitation.

We’re here today to speak as small business owners. Yet for most of us, art is something more than a business.

Artists become artists because we want to practice alchemy - to turn the lead of experience into something that doesn’t tarnish or rust. At the heart of creativity is independence. We’re here today to defend our independence.

We didn’t ask for this law to be drafted. It’s not pleasant to have to be here to oppose it. Most of us would rather be home painting, writing, composing, making music, taking pictures. But if opposing this bill is the cost of our independence, then it’s a price we have to pay, because independence is the price we owe to our craft.

– © 2008 Brad Holland

Brad Holland’s work has appeared in Time, Vanity Fair, The New Yorker, Playboy and the New York Times, among others. He is a member of the Society of Illustrators Hall of Fame, the Alliance Graphique Internationale and co-founder of the Illustrators’ Partnership of America. In 2006 he testified against the Orphan Works Act in both Houses of Congress.