In the most audaciously coercive and anti-intellectual piece of legislation since the Stamp Act, Congress has figured out a new way to legally steal from artists, authors and musicians. The “Shawn Bentley Orphan Works Act of 2008” (H.R. 5889) was introduced on April 24, 2008, by House Judiciary Committee Intellectual Property Subcommittee Chairman Berman (D-CA) of California, Judiciary Committee Ranking Member Lamar Smith (D-TX), and Intellectual Property Subcommittee Ranking Member Howard Coble (D-NC). Still log-jammed in committee, its equally subversive Senate version (S. 2913), has reportedly cleared that bureaucratic obstacle and is on its way to the Senate floor.

This subversive Act not only allows, but encourages, any potential plagiarist or “infringer” to use the pirated work provided that he, she or, in the case of an institution, the corporate lawyers can go into court and testify that they have conducted a search but was unable to locate author, artist or copyright holder. The potential “infringer” or “user” would be required to conduct an as yet undefined “reasonably diligent search,” the precise extent of which would be left to the discretion and effort of the potential infringer. Moreover, it places the burden of proof on the artist; was he or she accessible to the potential user? Does the “new” art meet the standard to qualify as a “derivative”?

Among its other larcenous provisions, it limits the remedies in a civil action brought for infringement of copyright of an alleged “orphan work.” It amends Chapter 5 of Title 17, United States Code, (Copyright law) by adding "§ 514. Limitation on remedies in cases involving orphan works." Where, even after a victory in Federal court, the potential damages to the artist may not even cover the costs of pursuing the litigation.

According to this new law, all anyone needs to do is claim that an attempt was made to reach an artist or author who couldn’t be found and his or her work is deemed “orphaned” and eligible for “adoption” for any purpose.The U.S. Copyright Office, once the protectors of artistic license, has proposed that Congress grant such infringers freedom to ignore the rights of the author. including commercial use

The act defines an “orphan” as any work where the author is unknown, unidentifiable or un-locatable, and applies to “domestic, foreign, published and unpublished works, regardless of their age,”  including original work and derivatives, even those registered with the US Copyright office.  Technically, these works are still protected by the Copyright Act of 1976, whether the artists can be located or not. It also applies to works in which the copyright holder is a defunct corporation or company or when the copyright holder might be dead and heirs cannot be located. Finally –perhaps most importantly-- it is work where the creator or copyright holder is not expressly identified. In other words, there is no name credit in print, no name on the image or other lack of intellectual “parentage.” In truth, who among us does not having something floating around anonymously or, more susceptibly, something from which the byline or autograph can be easily removed?   

At the mercenary heart of these bills (functionally just House and Senate versions of the same larceny) the amount of damages a copyright holder could collect from an infringer would be significantly limited.  This operates on the presumption the infringer has reportedly performed a “diligent search” (without finding the artist), and then somehow the artist --or copyright owner-- discovered an infringement and decided to take action in Federal Court. To expedite these searches, the bills (both versions) allow for the establishment of commercial (non-governmental) “registries” of art, music and literature where (for a fee) artists may register their work to –hopefully— prevent this sort of piracy.

In truth, these privatized copyright offices (which register the work, but provide no copyright protection) will likely serve artists no better than privatized prisons, motor vehicle departments and other bureaucratic attempts to absolve the government of its responsibilities have served the general public.

The proposed legislation refers to requiring potential users to search “non-governmental databases” of copyrighted work. Since these registries don’t exist yet, it would seem some sort of new technology would be needed, a technology which would likely create a plethora of job titles for those otherwise unemployables no longer eligible for government nepotism. These databases would become one-stop shopping centers for pirates and bootleggers to search for infringe-able art, as any –all-- works not found in the registries could be considered “orphans.”

The artist would bear the financial burden of registration; the Copyright Office has stated explicitly that failure of the artist to meet this bureaucratic onus would result in the work almost automatically becoming an "orphan." The bill sets no limit to the number of these registries, nor to the prices they might charge for registration, nor the consequences of a work in a registry unsearched by a potential infringer.       

While these bills are on the calendar, the majority party leadership determines the order in which bills are considered. Being an election year, legislative action may have a very different set of priorities. The eventual outcome remains far from certain.

Nonetheless, prevailing sentiment among authors, artists and academics is one of resignation that, at some point, an Orphan Works law will be passed.

If enacted, this (pardon the pun) patently illegal legislation will effectively undermine existing copyright protection in violation of the Copyright Act of 1976, (in effect since 1978) which grants exclusive transferable rights to the artists for his or her lifetime plus 70 years and includes rights which can be transferred to the artist’s “heirs or assigns.”

While our government may be able to circumvent our own domestic laws at will, they have taken a dangerous step into international violation of both the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade Related Aspects of Intellectual Property (known at the TRIPs Agreement) which make it illegal for any country to impose registration on a copyright holder as a condition of protecting his or her copyright (Article 5, section 2); “the enjoyment and the exercise of these rights shall not be subject to any formality” (author’s italics).

Nor is this bill strictly of concern to the more stereotypically “creative” artists; “If this bill passes, it will radically restructure copyright protections currently guaranteed to creators by making it legal for anyone to use, reproduce and change a creator's painting, illustration or photograph without permission, fair or appropriate compensation, or proper legal remedy,” says Michael Belknap, President of the American Medical Illustrators.

Other Draconian provisions of this bill include a prohibition on “injunctive relief,” which means, simply, even after winning in federal court (at an exorbitant cost to the artist), the artist is limited in recovery to what a “reasonable” judge might assume a “reasonable” buyer would pay to a “reasonable” seller in the absence of any coercion (such as the user’s already having made a significant amount of money from the “orphaned” work). Current law allows an injunction to halt the use of the work and damages and legal fees up to $150,000 for each work infringed.

Further exemption is made in the case of museums, libraries and certain other non-profit entities where a proposed clause could provide protection from litigation and exemption from damages, expanding “fair use” into “full use.”

The bill also specifies “unrecoverable permanent orphaning” in the case of derivatives. Under this legislation, the artist will be prohibited from “enjoining any infringed work derived from” his (or her) own originals. All the infringer must do is manipulate the image enough to meet the minimum definition of a “derivative” work (a definition which has yet to be clarified). This is grand larceny at its grandest: this bill will allow the exploitation of countless artists by using these derivatives to compete with the original work.

As an example; suppose DaVinci still held a copyright on the Mona Lisa. Now consider National Lampoon’s satirical “Mona Gorilla.” Under the provisions of this bill, if P.J. O’Rourke could not have found Leonardo in the Los Angeles phone book, he could allege that DaVinci was “unreachable” and use the work to whatever end he saw fit. Further, if he could prove that it was sufficiently “derivative,” he would be exempt from any consequences at all. The burden of proof would rest with Leonardo to prove (in Federal court) that O’Rourke had “kidnapped” Sweet Mona. That’ll wipe the smile off her face.

The Orphan Works Act puts all art at risk; making a potential orphan of any work, by any artist, living or dead, foreign or domestic, through its retroactive “grandfather” provisions. Furthermore, it limits artists’ ability to do anything about it even once they’ve discovered an infringement. This is, undoubtedly, at least one of the reasons it’s backed by huge corporate interests like Microsoft and Google, who are publicly and actively supporting this bill.

Granted, there are indeed works of art, films, books, manuscripts, codices and other materials in museums and libraries for which no copyright owner exists, and the current system is restrictive –though not unduly so-- in protecting the rights of the artists by prohibiting unauthorized use of their material. Hence the rise of the Creative Commons groups and their unsubstantiated claims that copyright law is too prohibitive (“too prohibitive,” perhaps, for them to make money off true artists’ work) and that it denies people the freedom to access and use all manner of creative works.

This argument overlooks –or ignores— the fact that “people” do not have an inherent right to use the work of others to their own ends. While all should have the right to appreciate, none have an inalienable right to exploit.

Nor do these groups present a clear, cohesive or even coherent front; even Stanford Law professor Lawrence Lessig finds these bills “onerous and inefficient,”  and likely to start a land-rush frenzy for art, music and literature which will further the Fagin-esque exploitation of these “orphans” while stripping artists of essential and inherent rights.

In a culture which purportedly values art (even if mostly by lip service, and somewhat less than other forms of individual accomplishment such as sports or even mere celebrity), the question arises as to why such larcenous legislation would have been introduced in the first place.

The charitable answer to that question is that the lobbies for the Associations of Museums in America, The American Library Association, archivists, educational and text book publishers want a more streamlined means to be able to digitally archive and reproduce orphaned intellectual properties. The world needs to see these works, they claim. Be that as it may; need does not justify larceny and the artists in question who created these works have the intrinsic right to profit from their own work until such time as the benefit of law expires and the works enter the public domain. In most cases, even among public domain works, the author or artist’s name remains connected with the work, such as the works of Shakespeare or Mozart; though “royalty-free,” these works are still not “orphans.”

These arguments are not without merit; the advent of new technologies which can expedite the need for libraries, museums and educational concerns to either digitize or preserve works is very real but not at the expense of the artist, but this bill goes far beyond the mere archiving of truly orphaned works; this is a radical departure from existing copyright law and business practice.

Be it illustrations, graphics, fine art, surface design, photographs, maps, software, sculpture, film, music and even whole or excepted written works, the prospects for this legalized plagiarism are too grim to contemplate. For further information, check out: www.illustratorspartnership.org. A similar site is available from the Graphic Artist Guild at: www.gag.org  Your next work could be the next “orphan.” Don’t let ‘em get away with this.

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