The Graphic Artists Guild opposed the passage of the Senate version of the Orphan Works bill (S. 2913) and issued the press release below. This page will be updated as the situation warrants in the future. Please subscribe to our RSS feed to be immediately notified as this website is updated with new information.
Graphic Artists Guild Opposes Senate Orphan Works Bill
NEW YORK – The Graphic Artists Guild’s Board of Directors voted unanimously Friday to oppose the Senate’s passage of the Shawn Bentley Orphan Works Act of 2008 that significantly alters copyright protection rights. The Guild says the bill approved by the Senate Judiciary Committee is incomplete legislation, insufficient protection and indifferent to American workers.
The Guild has been advising members of Congress about the “orphan works” issue since 2006 and participated in discussions with the Copyright Office since 2005. The Guild withheld comment about the Senate bill until work was finalized. That position changed when the completed version was announced only hours before the Senate committee vote last Thursday.
“This is a disappointment,” Guild President John P. Schmelzer said, “We’re encouraging creative people from all industries to contact their senators to express their disapproval before the full Senate vote later this year.”
Orphan works legislation is intended to limit monetary rewards and injunctive relief to stop further infringement of copyrighted works for which the user has been unable to determine the identity of the copyright owner. The Guild and the artist community are concerned that the manner in which the limitations are imposed could produce an incentive for theft in the highly competitive industry that contributes $13 billion a year to the U.S. economy.
Guild leadership was pleased that lawmakers agreed with their recommendation to exclude artwork used on “useful items” such as textiles or wallpaper from being subject to the bill, but they say the measure otherwise has a long way to go before sufficiently protecting copyright owners.
The bill is incomplete because three key provisions the Guild sought to protect artists were left out. At the center of the controversy are the “best practices,” “database certification” and “notice of use” clauses.
When artwork is being considered for use but the artist’s identity is unknown, the bill’s provisions state the user is to attempt to locate the artist by following the best practices outlined by the Register of Copyrights. These practices have not yet been drafted however, and the bill will go into effect prior to their adoption.
The bill also references a database that’s supposed to make the search for copyright owners possible, but no such database exists for graphic, pictorial or sculptural work. There are no plans for the Copyright Office to create this database, and Congress cannot mandate one be made by a private company. In this case, no matter what best practices the Copyright Register might determine are appropriate for finding a copyright owner, the capacity to do so is not possible at this time.
The Guild proposed a further compromise that the legislation include a publicly accessible “notice of use” filing statement. This provision requires an individual or organization to submit a copy of the visual work believed to be orphaned to the Copyright Office prior to using it. The Copyright Office would then post the filed information on the Internet so copyright owners could review the website and self-identify themselves as the owner. The virtual “lost and found” department would additionally ensure bad actors could not falsely assert they fulfilled the diligent search requirement of the law prior to using copyrighted work.
The Guild says copyright law was established to protect the creative community that made America the inventive capital of the world. The bill in its current state does too much to protect the interests of possible infringers and reduces protection for creators. The measure is indifferent to artists because it fails to take into consideration the long-term effect to the income potential for a workforce whose yearly median income is only $39,900 according to the Bureau of Labor Statistics. People who use artistic works, such as advertising and promotion managers, make a median average of $73,060 per year.
Guild Administrative Director Patricia McKiernan says the group will remain engaged to resolve these high priority shortcomings of the legislation.
“Copyright protection is an important issue for our membership and the economy they serve,” McKiernan said. “When anyone’s economic rights are reduced, it has enormous implications for the country as a whole. We will remain steadfast for the artist’s interests and this important industry.”