Orphan Works Bill

Update (April 2010):
     Education is our best defense against the illegal use of our images. And apparently even the well-educated have a hard time grasping the concept of why using images without permission is stealing.
     Read the comments in "Big Mother gets her shot at cutting health costs" by Dana Blankenhorn. He originally used an image by a famous illustrator without permission. When called out on it, he actually defended his position! (And he admitted to doing the same thing countless times in the past.) I'm not sure how he could feel justified after the slew of thoughtful and passionate comments from people who make their living as illustrators - people who were completely horrified.
     The reason I bring up this example is because it's important to know this happens all the time. It's also important to know that the internet has created ways for illustrators to find the infringers - through Google Alerts and such. I have personally had to go after businesses who have used my images without permission or compensation. (They get paid to do their job, why shouldn't I?) It places me in an awkward and difficult position, along with cutting into my ability to make a living. That's a very real threat to me.
     So, on to the discussion of Orphan Works...

     I don't usually talk about politics on my blog, but this particular issue directly affects me as a freelance illustrator.
     Have you heard of the Orphan Works Legislation that's been sneaking through the House of Representatives? Well, if this Bill goes through, it could directly affect my business - not in a good way. Right now, when I create, I own my creation. It's an automatic copyright. Seems logical. I created it so I own it.
     I make my living by people paying me to use my art.
     But sometimes when a person wants to use a piece of art, nobody knows who the artist is, or they can't find them. That's an Orphan work - a creation (music, art, a photograph, etc.) who's creator can no longer be located and therefore permission cannot be saught or compensation offered for usage of their work. Orphan works do exist, and libraries and schools do have legitimate reasons for wanting access to be able to use these works.
     But that's not what this Bill is about. It started out that way but quickly morphed into a way for commercial businesses to use artwork without much research and without much recourse for the artist.
     Here's the gist: Let's say there's a big t-shirt company (I mean really big) - that wants to use a piece of art for their company logo which they found on Google Images - a great sketch of a happy sun - they want to use it on everything they produce.
     They can do what they call "due diligence" (this term has not been defined in the Bill) to find the artist, and if they can't find the artist, they can declare it an orphan work and use it anyway.
     Say the artist finds out, because the image is now in every store in America. The artist can sue the company for damages, but there's a cap on how much the artist can sue for (not a very high cap).
     And here's where the Bill protects the abuser and not the artist: the Bill is so loosely defined, loop-holes abound, and if the big corporate lawyer is better, and more powerful than the lawyer a poor little freelancer can afford - the company doesn't have to pay the artist a dime and the artist is out the legal fees they spent and time wasted (which translates to income in a freelancer's world). Most of the time it will literally makes no sense for an artist to go after an abuser (this is true even in today's system).
     One argument to protect artists against abuses is to create a database for all works to be registered. Sounds logical? Well, this database does not exist yet. The software to search the work in a database does not exist yet. (I'd like to see it search for abstract art.) Whether or not this would be a non-profit or profit driven database has not been determined.
     In other words it could cost me money to register every single thing I draw or I don't have any rights to my own creations.
     Let's say that unlucky artist drew that happy sun on a cocktail napkin - there's nothing in this Bill saying how much that artist would have to pay to register that cocktail napkin.
     Reality check - people illegally download my work for their personal use all the time. Yes, I make my coloring pages available and free for non-profit uses, but I have other images on my website that have been downloaded literally hundreds of times (I can follow this in my stats) - work that I never gave permission for and was never compensated for.
     So why do I have my artwork online? Because I'm a freelance illustrator and to get new work, I have to advertise myself with an online portfolio. So while it's really rotten, theft happens.
     Beginning to get the picture? This Bill protects the abuser, not the creator. It could severely cut into my ability to charge for what I do and how I make my living.
     So what can you do to help stop this Bill from going through? SIGN HERE. Our biggest enemy on this legislation is that nobody has heard of it. One Congressman supposedly thought it was about orphan children. Another was quoted as saying "we must protect the consumer" (implied: not the creator). What!?
     So, please SIGN HERE. It's time to get as many people aware of this bad legislation as possible and start shouting about it to our representatives. The ability for me to continue creating art could hang on this - so please go SIGN.


DesertGator said...

Elizabeth! I can't believe this... you originally wrote this in 2008 & I see NO comments!!! Tell me this isn't true?

Copyrights for the Creator! is a HotButton issue for me. 25 years ago as a young Army Wife, I created a logo for a womens group (as a "favor"). Although I was not educated about copyright law, I sent the group a letter confirming our oral agreement that my name was a part of the design and that they would send me a letter at the end of each 'board year' notifying me of each new & unique use of the logo so I could maintain a History of the logo. I also requested a letter stating that they understood our agreement and would follow through. I did receive that letter. Each time the Army moved us I wrote a letter to the secretary of the group with my new address . I NEVER heard from them again, so after awhile I just gave up.

That was my introduction to the importance of educating one's self about Copyright law, abiding by it and educating others in the proper use of it. Which I do.

Even so I know several published authors who expect their work to be protected, yet flagrantly copy others work.

Thank you for your page on the "Orphan Works Bill". I will follow your link and do my duty. I will also email a link to my husband who is writing his 3rd book and may not know of this.

Thanks agian for your effort.
Karen aka DesertGator

Elizabeth O. Dulemba said...

Thanks Karen! Yup - it's the less glamorous side of what we do and yet perhaps the most important. It's hard enough to make a living in the arts without people using your art without compensation. Sadly, it happens ALL THE TIME. I've had to become quite diligent about chasing down infringers and have had to go after some people and corporations (never a fun situation to be put in), but hopefully, one person at a time, I'm helping to educate.
Spread the word! :) e