Artist's Rights in Jeopardy MOD EDIT: (Orphan Works Bill)


MOD edit:The most recent thread discussing Orphan Works and how to email Congress to express your opposition to the legislation may be found here:

Oppose Orphan Works 2008 with a click of a button

Below is the original content of this thread. - Kirt

[size=2]This is being reposted from the IPA website by permission from Brad Holland[b]

Government “Promoting” Orphan Works[/b]

Yesterday (March 13) the House subcommittee on Intellectual Property held their first hearing on new Orphan Works legislation. Note the title:

"Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users"

Balance, however does not seem to be part of the Orphan Works juggernaut. Indeed, after this hearing, we can no longer assume that the U.S. Copyright Office is an advocate for the protection of creators’ rights It confirms what they wrote on page 14 of their original Orphan Works Report:

“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation.”
(our emphasis)

[b]But how can any copyright law be “comprehensive” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the business lives of creators?

Private Sector Registries[/b]
Since the last bill died in committee in 2006, the advocates of this legislation have promoted the creation of private commercial registries. On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry would be a potential orphan from the moment it was created.

This means you would not only have to register all your published work, but also:

[b] - Every sketch or note on every page of every sketchbook;

  • Every sketch you send to every client;
  • Every photograph you take anywhere, anytime, including family photos, home videos, etc.;
  • Every letter, email, etc., professional, personal or private.[/b]

This Would End Passive Copyright Protection:
Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.

The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:

[b]a.) Expose creative work to plagiarists and derivative abusers;
b.) Expose trade secrets and unused sketches to competitors;
c.) Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.

Yet registries will not be able to monitor infringements nor enforce copyright compliance.[/b] Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements - which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.

Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.

We urge Congress to carefully reconsider the unintended consequences of this radical copyright proposal.

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

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists


wow! very comprehensive.


Start with a hall of shame. Get the names and pictures of every bureaucrat that is “promoting” or is “lobbying for” this Copyright Law. Create a video campaign - Youtube, Revver or any other form of public video as a unified public awareness to get attention called to this.

Virtually any forum or gallery where people post works or links to galeries could fall into the catagory of Orphaned works. Because there are archived indexes of Web sites going several years back, if some mindless bureaucrat throws a retroactive amendment to this, we all lose.

Find the bureaucrat in your district - organize members in your area and rally a vote against them and their associates re-elections in 2008.


for additional copyright protection as to your individual works, a really good place to check out is

many artists use this site to give varying degrees of international [i believe] protection to their work.


I guarantee you that Getty, Corbis and other such stock houses have already trawled the web collecting suspected works and are just waiting for the outcome of this bill to reap a potential profit. The onus of “discovery” if a creator finds their work being misused is firmly on the creator, at the very least the bill’s sponsors could make it mandatory that a [color=yellow]actual IP attorney be required by the potential user to conduct the search for a copyright holder before proceeding to use the work in question. [/color]

This is obviously a bill, once again, proposed to benefit the large and powerful over the rights of the individual. It saddens me that artists, writers, musicians, photographers and other types of content creators have been cast as the enemies of public domain by advocates of this legislation, laughable considering how few artist actually “get rich and powerful” off of their craft.

Rep. Lamar Smith (R-Texas) is the bills sponsor.

This is a link to a site to track how your elected Rep’s are voting on important issues (including this up-coming bill):


yes, getty’s the biggest bitch around. they will charge you for a satire of one of their photos as when i called to find out, and about $800 for a thumbnail size post of your own private work based on one of their photos, so where the 1st amendment begins and ends unless you’re lorne Michaels is getting mucked up even more. and i do believe that ‘satire’ is very much covered by a larry flynt court case via pat robertson/jerry falwell, so anyone w/ lawyer friends, get some info.

HOW TO MAKE CONTACT: i called and asked who deals with “permissions” and copyright issues. that’s all you need to ask to be put in touch with [supposedly] the right person who deals with this, which every publishing organization has. they must. it’s illegal for them not to have someone covering this stuff.

i have found that with magnum, i called and got written permission for one of my pieces based on one of their works, as long as i gave direct links and stated permission from them. they were very civil, as was time magazine. YOU MUST GET SOME SORT OF LEGAL PERMISSION[S] FIRST and FOREMOST. this took me almost 4 months to accomplish alone, while doing the other copyright work on my site. so SEPARATE permissions of work based on others work is already required by law, and you must ask them how you want want their permission to post that info along with your work should be indicated, and if THEY want, you will send them copies of the links for their records. this should be considered common courtesy. and keep all of your contact info like you would your tax records.

for examples of how i posted this info ,see these links on my site for which i got legal permissions from publishers and authors: read the necessary info below the pics that pertains to this post for your own purposes. i’ve pulled some info out below for a quick look.
magazine publication: for houses models based on “After The Shouting” by Olivier Andriotti and Penelope Monet from issue 29 of Baseline Magazine.
re: artwork - the hand and foot illustration models are based on artwork from ‘Atlas of Primate Gross Anatomy: Baboon, Chimpanzee, and Man’ by Daris Ray Swindler and Charles D. Wood, 1982; the pen and ink illustration plates I based my work on here are by P. Greene.

i know the legal stuff is a bitch, but i hope this helps in the meantime while you’re checking out for additional info. also check to see if there is backdating on usage of permissions in the bill. that matters more than anything else right now. that’s where the real fight would be . the real blood.


Is “orphan works” being used here in its common meaning or some strange new definition? As I understand it, an “orphan work” is a copyright work which cannot be licensed for use because the copyright holder cannot be contacted. For example, you may find a photograph on the internet with no connection to an author or website or any way to contact the photographer. That is an orphan work because you have no way of contacting the owner. However, it is still protected by copyright - some countries allow licensing of orphan works, but that does not negate copyright. The original owner may assert their copyright at any time.

Any content in a forum, gallery, sketchbook, etc. that has a connection to the owner of a work (name, email address, forum profile, etc.) cannot be considered an orphan work. An attempt to contact the copyright holder must be made. Copyright is still assumed at the time of creation - when something is considered an orphan work it does not lose copyright. Something like an email, explicitly linked to an email address, could never be considered an orphan work. So what’s the problem here? If you’re really worried, it’s as simple as just stamping an email address on whatever you produce (or putting it into EXIF or other metadata), which is good practice anyways.


Tim, this link will explain CreativeCommons to you:

One of the primary problem with the Orphan Works proposal is that unscrupulous individuals can simply erase authorship from a piece of work, claim they were unable to locate it’s creator and then proceed to use the work illegally. By the time the theft has been discovered, the fraudulent party will only be responsible for a meager penalty, if the artist can prove they are the actual original creator. As has been stated, there is currently no fool proof method of digitally tagging a work that can’t be later erased.


I know what Creative Commons is. What does CC have to do with orphan works?

One of the primary problem with the Orphan Works proposal is that unscrupulous individuals can simply erase authorship from a piece of work, claim they were unable to locate it’s creator and then proceed to use the work illegally. By the time the theft has been discovered, the fraudulent party will only be responsible for a meager penalty, if the artist can prove they are the actual original creator.

How does this differ from current practices? It seems to me that this type of thing already happens, and rarely are significant penalties ever awarded. I consider it the cost of doing business on the internet. If you widely disseminate your work in digital form, you must accept the risks involved. It’s like music piracy: the cat is out of the bag. Furthermore, how can you prove that someone who uses an allegedly orphaned work is such an unscrupulous individual? If someone else erased authorship from the work and released it back onto the internet, and the eventually user of the work genuinely attempts to find the owner and cannot, is he unscrupulous?


Copyright and patent laws have always been a pain in the butt for as long as I can remember. Back in the olden days before computers I remember a cheap world wide patent cost 10,000 bucks aus. Totally useless because korea and taiwan didn’t recognise these contracts and so could copy and produce what they wanted.

The laws themselves differ between countries. The best advice we got as students was get in and out quick, make your money and get on with the next thing.

Cheerio Chris


I never trusted the copyright laws actually. It was not well maintained by the Gov anyway. Now they are bringing in even more stupidity to it. For that reason, none of my pictures in the gallery is ever full resolution. Or sometimes I put certain watermarks. Most of my photographs are 3K res, but I only put 700 res on sites and if people requests for it, I would give them the original accordingly. I don’t trust anyone to protect my asset, not even the stupid ones at the gov offices.


Creative Commons is the way to go. Copyright laws are supposed to protect the artists right to make a living and get credited if their work is used in not for profit work, not conceal their work from everyone making it this closed secret that you only get when you pay the entrance fee!

I hope every artist starts following in the CC footsteps. Trent Reznor is all about it and freely distributes his music for all to share and re-create…and he still makes a fortune selling it!!


well the law thing is lame but a minor point about trent reznor radiohead and other new advocated of disributing stuff for free- they are famous cause of the old machine they are trying to dismantle. an unknown artist now starting from zero has much less chance making money selling things online that could be freely obtained… the brand of trent reznor or radiohead has worth at least partly because of promotions funded by their old record labels, in the past.


I would have to agree here. Once you establish a certain level of wealth and notoriety, the public release and share program is big news and gets circulated well by media and fans. For upstarts it offers little reward to offset expenses if this is how one earns a living. I’m a big fan of Radiohead, but I doubt they would be where they are today had Pablo Honey been relased @ whatever the listener wanted to pay for an album. The scale of economics favors the established; as managing promotion and marketing are way under rated.


The whole pdf by Marybeth Peters covering the “Orphaned Works.pdf” spills over into too many areas. It starts out fine. Like when old photographs or footage of historical events lack authorship thus denying film makers or historians use in historical presentations.

I’m a little less convinced that digital editors refuse to edit/repair your old photographs of family portraits because the photographer is whom may own the copyrights. Soon after that her points begin to lose validity.

Interesting enough she notes that its not practical for the Copyright Office or any government office to keep pace with image technology.

When I read the part about the Electronic Copyright Office (eCO), my gut wrenched at the idea that government (any government) could properly address the mass of content submitted. Of course this buerocratic morass would come with a fee for each image submitted.

With this document the subject of Orphaned Works applies to works not registered with the eCO. It would not be enough to have enbedded info, web page gallery stating ownership.

They shouldn’t mix Historical/Achival orphaned works with modern day digital productions. The Conclusion in her summary just doesn’t apply.


This is about the most horrible thing that could possibly happen to the creative industries.


There’ve been a couple of cases like this recently (though the case with RyanAir and Sarkozy was less surprising, just because it’s RyanAir). I wonder how much of a comeback anyone would have if this bill went through.

The best bet would be to put this in terms a politician can understand: “I could take your photo off your official website, use it to promote anything I want and so besmirch your good name, then claim I just found it somewhere else without attribution”. That’ll kill it faster than dropping a nuke on it.

Of course, it might be more complicated than that, but it’s a start.


Someone’s figured out there’s money to be had in exploiting artists.

Goodbye CGTalk,, deviantArt… /sigh


Actually NO

I think this is a PERFECT opportunity for all these forums to become registration houses for artists worldwide.
The foundation is already there.
We could be the group block that can fight Getty, Corbis and other stock houses.

You post something in your cgporfolio, and it could become automatically registered.
Taking the idea a bit further, with next gen image search technology, we could verify that our work are not being distributed as orphan art.


Isn’t flckr allowing you to apply CC licenses to everything you upload automatically?