There are creative people, and then there are exploiters. On behalf of two senators, and presumably their corporate sponsors, the Copyright Office has drafted what’s known as the Orphan Works Bill so that when someone wants to publish something that includes a piece of art that he did not create he can proceed without fear of being sued for damages. I believe that the duration of copyrights, as dramatically expanded by our congresscritters at the behest of the likes of Disney in the last century, is a travesty, but I don’t think eliminating all protection for individual artists is the way to address the problem.

There are bills in both the Senate and House, currently in the Committee on the Judiciary at this point. None of the Washington delegation is on the committees currently considering the bills, but I wanted my views known before a bill is reported out. In past years, most of the creative community was opposed to the bills, now at least one photographic trade group is willing to accept the House version. It is better than the Senate version, but that is to damn with faint praise. (Imagine, if you will, a law that allowed murder by firearms compared to one that allowed it unless the gun was of small caliber and very high rate of fire.) Specifically, the House version does not exempt infringement in the case of purloined creations involving “infringements resulting from fixation of a work in or on a useful article”. That is, you couldn’t take advantage of the new rules to put the stolen art on a coffee mug. Therefore, one section of my broadside needs to be changed depending on whether it is going to my representative or one of my senators.

The two bills, with links to the full text on Thomas:
Senate: Shawn Bentley Orphan Works Act of 2008, S.2913
House: Ophan Works Act of 2008, H.R.5889

Feel free to adopt as much or as little of the text below to communicate with your congresscritters, particularly if they are not the same as mine. (Rick Larsen, Patty Murray, Maria Cantwell)

I am writing today to urge you to vote against (insert name of bill), and to communicate your opposition to the Judiciary Committee through personal contact or your staff as seems appropriate.

I believe that a thriving society depends to a great extent on its creative community: authors, artists, and inventors. The framers certainly were of like mind, and were clearly aware of the contract between society and its creative members when they wrote Article 1, Section 8, Clause 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.

This contract exists to encourage as much creative effort as possible to be exerted, with the results entering the public domain for all to use after allowing the creative person the right to first commercial rewards. Although I think the current copyright terms have been stretched far beyond any reasonable interpretation of “limited Times”, the Orphan Works Bill would go too far in the other direction, eliminating all copyright protection for many artists.

The Berne Convention, by establishing copyright at the moment of creation without requiring the individual artist to take specific legal action, extended this protection to myriad individuals without the legal savvy, or legal budget, to go through the expensive and time-consuming steps of registration and eventual renewal. For commercial ventures, and for established artists, these steps are trivial. For those starting out, those who might hope to sell a photo for $25, a sketch for $100, or a small art quilt or oil painting for $300, the requirement of registering every piece was onerous and the terms of the Berne Convention welcome when the US became a signatory thereto in 1989.

Under the terms of the draft bill, artists would once again be required to register every creation with a central registry. The details of this registry are not clear, as none currently exists and the bill does not create one. Rather, the bill would leave that function to the private sector, which obviously means that the artists would be required to register their works and presumably pay a fee. Moreover, by not designating a single registry, this opens up the possibility that the artist would have to register each new work with multiple registrars for full protection. Even then, the technology of image recognition that would allow searches of these registries simply doesn’t exist today, although some vendors assert progress.

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Use one of these, not both:

House version:

Given the current quality of digital cameras, a firm that wanted to include in their product an artist’s work can simply walk up to the work, snap a picture, perhaps obscure the artist’s signature, and submit it to the image registry. If there is no match, they are free to go to market with the misappropriated art without fear of penalty. I fail to understand how this could be seen as a significant benefit to our society.

Senate version:

Given the current quality of digital cameras, a firm that wanted to sell coffee mugs or T-shirts featuring an artist’s work can simply walk up to the work, snap a picture, perhaps obscure the artist’s signature, and submit it to the image registry. If there is no match, they are free to go to market with the misappropriated art without fear of penalty. I fail to understand how this could be seen as a significant benefit to our society.

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If an artist discovers an infringement, the limit of compensation is set at the amount a reasonable buyer and seller would have agreed to before the infringement occurred. Eliminating any penalty for innocent infringement may be an appealing feature, but the expense of discovering the infringement and the legal costs in securing relief are likely to be far greater than the actual value that would have been negotiated in advance. Thus the infringer has the a dramatic advantage over the individual artist. At least some infingers would become very casual about their “qualifying searches”, knowing that most artists would simply lack the resources to even attempt to claim their rightful compensation and none would be able to recover legal fees or damages.

It is my considered opinion that the benefits of the Orphan Works Bill, specifically the immediate release into the public domain of works that are truly abandoned by their creators, do not come close to equaling the costs that would be borne by the artistic community, and most specifically those that are young or otherwise new in their careers, or those not yet willing to step out and take up art as a full-time occupation.

Far better that those artists put the same money into promoting their work, filling their gas tanks, or buying a bag of groceries while they are protected by the current law.

(A signature to rival John Hancock’s will be affixed here, but without all that “your obedient servant” nonsense. I’m sending it to those who are pledged to be my public servants, after all.)