[DAC] FW: MAASH Bulletin--Orphaned Art Works

[Joyce Linehan]

   _____  

From: Dan Hunter [mailto:dhunter at maash.org] 
Sent: Wednesday, April 30, 2008 2:20 PM
To: Joyce Linehan
Subject: MAASH Bulletin--Orphaned Art Works
 

Orphaned Works Information Bulletin
April 30, 2008
  
Many artists and members of the cultural community are rightly concerned
about the Orphaned Works Act and how it will affect artists’ control of
their work.  The following is an assessment of the bill as it is worded now
and some of the key problems.
  
The Orphaned Works Act of 2008 was filed simultaneously in the Senate and
the House by Senator Patrick Leahy (D-Vermont) and Congressman Howard Berman
(D-California) last week.  (Senator Leahy and Congressman Berman have been
long time supporters of the arts and artists.)
  
Though it has been in the works for several years, the Orphaned Works Act
has a long way to go before it becomes law.  It has yet to have even a
sub-committee hearing.  The bill raises many questions and we will have
opportunities to make changes to better suit the needs of artists.  MAASH
will work with Americans for the Arts and artist groups to coordinate a
national strategy to make those changes.  Please read through this e-mail
and send me any comments, thoughts or suggestions you have.
  
The Orphaned Works Act addresses the need for clarity over the copyright of
images.  It does not remove the artist’s right to her own work.  Copyright
is inherent on creation as established by the Constitution.  However, the
Orphaned Works Act moves the system of visual copyrights closer to the
system used in literature, drama, and music.  
  
The bill would charge the Office of Copyrights with creating a database of
images listing the creator with contact information.  Companies or
individuals who want to use an image would be required to search that
database to determine the creator and provide compensation to the creator.
In theory, the bill would protect artists by giving them clear claim to
their work and legal claim that would extend beyond their lives.  It would
be particularly useful in protecting images posted on the internet.
  
However, there are concerns that have been raised by the artist groups:
  
Currently, if a company infringes on a copyright, the artist can sue and
recover legal costs as well as reimbursement for the value of the image.  If
a company can prove that it followed due diligence in tracking down the
owner of an image, then the artist cannot recover legal fees and may not win
the lawsuit.
  
Under this bill, the process of tracking down an image is streamlined,
making it easier to find your image and assure your compensation.  However,
if the work is not in the database, then the company can use the image for
free.  Furthermore, the company will be deemed as having conducted due
diligence by searching the electronic database.  
  
This moves the burden for establishing legal ownership of an image to its
creator.  Artists are rightly concerned that this places a potential
financial burden on the artist who may have to pay filing fees, just as
writers, songwriters and composers currently do.
  
Another significant concern is the efficacy of the electronic database.  How
would the database distinguish between images and how accurate will it be?
One estimate is that the current planned database could make errors as often
as 10% of the time, constituting a substantial loss of income for artists
whose images are skipped by the database.
  
The bill was filed only last week and faces many hurdles and a long time for
it to become law.  MAASH welcomes any comments, observations, and
suggestions on how the cultural community should respond to this proposed
law.  In particular, how can we protect the rights of creators over the long
term?  One of the purposes of the bill is to make it easier for creators to
be paid, albeit at the cost of registering some of the work.

Dan Hunter
Executive Director
Masachusetts Advocates for the Arts, Sciences & Humanities (MAASH)
  

 

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