EFF on why artists should support the Orphan Works proposal

The Electronic Frontier Foundation's Hugh D'Andrade -- a professional designer and illustrator -- and EFF Staff Attorney Corynne McSherry produced a great piece and podcast about why artists need to support Orphan Works legislation. There has been an enormous amount of FUD about this -- people saying things about the proposal that just aren't true. It's nice to have someone clear the air, finally.
The Orphan Works legislation would help resolve those fears and, in the process, encourage the display and re-use of these “lost” works. Under the proposed law, individuals who would like to use an orphan work must put diligent effort into searching for the owner of the copyright in the work, based in part on best practices to be outlined by the Registrar of Copyright. If that search comes up empty, they can use that work. And, if at some future time the copyright owner comes forward to demand payment, the legislation requires the second author to negotiate with that owner in good faith to determine reasonable compensation for the use, and promptly pay that compensation.

And if the second author doesn't follow the new rules under the law and simply uses the work without making a diligent search? The copyright owner can sue them under the current rules and potentially obtain statutory damages of up to $150,000 per work -- just as they can now.

Congress also plans to certify searchable databases for visual works like photographs, graphic arts, and textile designs that will collect information about works and contact information for the related copyright owners. There are not “formalities” associated with these databases. No artist will be required to “register” with the databases, and failure to register will not result in it being considered “orphaned.”

Link to blog post, Link to Podcast


  1. Meh. Good on them, and all, but this is just a bandaid on the problem. We used to have a database of copyrighted works. It was called the copyright office.

    We really need to just kick the rent-steaders out of the commons.

  2. My only concern is how is “reasonable compensation” determined? In my experience the value of a copyrighted work can have very different “reasonable” values depending on who you ask. In these days of $1 royalty free stock art. It seems that a case could be made that my image is worth far less than I would have ever agreed to license it for had I been contacted beforehand.

    As a copyright holder I have the right to charge egregious fees if I wish to. I might not sell any images that way but it is my right. Under this proposal a company could use my image without permission, and I am due reasonable compensation. So who determines what is reasonable? Is it based on the rates I would normally charge? What if someone considers my standard rate unreasonable?

    I am not saying that the Orphan Works proposal is bad but I would love some further legal clarification as to how reasonable is determined before I support it.

  3. #3 Spacedog: the existence of cheaper or free alternatives has no bearing on the market value of your artwork, because those cheaper or free alternatives aren’t artwork created by yourself.

    I can make a picture in MS Paint and offer it up, surrendering all rights to it, but that doesn’t devalue a genuine work by Degas.

  4. There are several problems with this law, but I’ll just rant about the main one. This bill effectively switches the value of a work from “what the market will bear” to “reasonable compensation.” (“diligent search” is the other area of contention.)

    From the bill:
    “(4) REASONABLE COMPENSATION- The term `reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.”

    How are you supposed to figure that one out without lawyers? If that was me and AT&T (for example) there would probably be 6 digits attached to anything I produced. What’s reasonable compensation for a work where the answer is “No. Hell No.”?

    Here’s a quick tip for spotting crappy legislation: any bill that carries the term “reasonable” will result in lawsuits. They will not be in your favor. Reasonable is not a description of anything: it doesn’t mean shit in practice. A company just used your work in a highly successful ad campaign, how much is reasonable? I’m going to go out on a limb and guess that my idea of reasonable is going to be a weee bit different. That’s not free market capitalism anymore, the product has already been used. This is why both parties negotiate *first* and then decided if its worth the cost.

    If you have to sue because of a disagreement in “reasonable” your lawyers fees are your own damn problem. Better hope that work was “reasonably” worth something if the court favors the infringers definition of reasonable over yours. It’s in that fuzzy gray area where the shortcomings lie. It’s going to take a lot of time, lawyers, and money before this bill actually removes any of the uncertainty it claims to.

    I don’t see how this clears the air of anything, I’ve read HR. 5889 and listened to the EFFs arguments and it still sounds like a bad idea.

  5. I would have to agree with the above statements about “reasonable compensation”. In, I think, every artists experience, it is the user (not the artist) and a court who determines what that is.

    While it might seem all well and good to have copyrights and a central repository and all, do you know how much it costs to copyright something? Upwards of $250. Let’s see… if I officially copyright every image i’ve ever created… Maybe I ought to open one of these registration repositories. Looks like good money.

    The point is, that no artist can afford to copyright every work they have so that option is out and unless i am proven wrong I think “Reasonable Compensation” is a scam.

    This is a good start but still seems to favor businesses over the artists whose work they hope to use and that seems an ill-proportioned plan.

  6. Agree wholeheartedly with Mike. Both versions of this bill have serious problems. On the issue of reasonable compensation, keep in mind that NO compensation will be paid to copyright owners when the use was by a church or educational institution. So what happens when my photograph is used by some religious organization that I never would have granted permission to? At best, the court can tell them to stop the use. UNLESS of course, they have begun using my work in a derivative work…in that case, the court cannnot even stop them. I receive no compensation and the use continues…all by an organization that I never would have granted permission to to begin with.

    Public databases…I can almost guarantee that there will be a fee to put your works into them and artists will not be able to afford that. Other than these databases, if a visual work has no copyright information on it, there is really on other way to search for the owner. It will become a necessary thing for artists to include their work in them.

    Orphan works should see the light of day, but not under either of these bills.

  7. Seriously? I love this Blog, but this is a terrible, TERRIBLE bill for visual artists. I’m actually a little surprised that Boingboing (which usually seems so artist friendly) would link to an article championing this proposal.

    You guys should really do a follow up, and ask Coop and all the other artists you link to what they think about this. You should also contact Trevor Brown who was recently boned by the band Crystal Castles . I’m sure he’d have a story or two about:

    “second author to negotiate with that owner in good faith to determine reasonable compensation for the use”

  8. #9 CCOMMONS – This of course raises the question, “How would we free orphaned works?”

    I don’t think this legislation is the right answer, but I’ll damned if I’ve got a better solution.

    On one hand, if you’re a independent content producer you’ll want fair market compensation for the sale of your artistic integrity to big pharm for its latest impotency commercial. On the other hand, if you’re making derivative works for sale you don’t want to get raked over coals when the obnoxious nephew of some long dead writer needs to fund his coke habit.

    Anyway, there are some things the law gets right: to use an orphaned work you have to mark it as such, and you have to register it in a central database.

  9. very bad for visual artists, especially those who spend a ton to make it and sell few and far between. paying for rights that you once immediately had just for maing it in no way benefits visual artists. how much will it cost to copyright just the catalog of images i creat in one year alone.. more than i would spend to create the work itself.

  10. Neither the house nor the senate bill is specific enough for me to trust either. What is a diligent search? What’s reasonable compensations? And who is going to reasonably compensate me when I have to pay for a lawyer to represent me? This legislation opens up too many opportunities for large companies to screw artists over. I support actual orphaned works being opened up to institutions, or even the private consumer, but I don’t think these bills protect artists who can still be located.

  11. I’m getting sick of all the apologist articles imploring people to “stop whining and read the bill – it’s not so bad”. No, in it’s current form and language, it is bad for artists.

    “…must put diligent effort into searching for the owner of the copyright in the work, based in part on best practices to be outlined by the Registrar of Copyright…” –

    Someone like P&G’s lawyers proving “due diligence” vs. lowly artist in court. Yeah, good luck with that, artists.

    “The copyright owner can sue them under the current rules and potentially obtain statutory damages of up to $150,000 per work” –

    If you can even afford a lawyer to take the case.

    “Congress also plans to certify searchable databases…”

    Congress-certified (?) privately-owned copyright databases? That sounds wonderful. I bet they will do a splendid job with that.

  12. GregLondon:
    ah well last I checked it was more. Even still… $45 to copyright each piece of art- lessee over 100 paintings, dozens of drawings…well… still a hefty bill. i’m sure the “database registration” won’t be free either. This non-profit that is our government really likes to make a profit where it can.

  13. I don’t understand a lot of the support I’m hearing. If I’ve been infringed upon, I can struggle in court for a while, which as a post-college grad doing freelance jobs is completely ridiculous to even suggest. wonderful.
    But aside from that, hasn’t the damage already been done? Someone enjoyed my work, but since it was propping up some insurgence ad they are unable to find me or other works of mine. Even if the matter gets settled, I’m out potential income. in a brass tacks pay-my-rent situation, its already over.
    And a browsable database of our work? boingboing? really?

  14. Strictly speaking, copyright is free and automatic. Registering copyright costs money. For paintings, put a small photo on your website with a © and you have dated digital proof, so there’s no reason to register it.

  15. This is a terrible proposal.

    It’s extremely easy to do more than $150,000 in damages.

    We all know of “churches” and “schools” that are fronts for people making money. And/or espouse beliefs that the artist disagrees with. Yet this bill provides no way for an artist to simply prevent such organizations from using their work.

    Instead, how about this simple rule:

    If you want to use something you didn’t create, you can’t use it until you find the artist and reach an agreement.

    If you can’t find the artist, then you can’t use it.

    If you can’t reach an agreement with the artist, then you can’t use it.

    Simple. Honest. Fair. Enforceable.

  16. Yet this bill provides no way for an artist to simply prevent such organizations from using their work.

    Bluemartin, arguably that shouldn’t be a goal of US copyright law. The Constitution gives our government the right to grant creators monopolies over their works in order to promote the sciences and arts. In other words, granting artists control over their work is not an end, but the means towards the end of having more art around.

    Allowing artists to veto derivative uses of their art strikes me as a case where the constitutional principle behind copyright is being turned against itself.

  17. Source for official details of the bill:

    Here’s the House version:

    Here’s the Senate version:

    It’s not long, so whatever your opinion is, go an read it. As Cory says, there’s so much FUD about this that the only way to get the actual truth is to read the actual bill.

    Firstly: there’s only a limitation on damages if the defendant proves they performed and documented a qualifying search and was unable to locate & identify an owner (amongst several other conditions they must also meet). Then, and only then, does the whole “Reasonable Compensation” possibly take effect. The onus is on the defendant to prove they did a diligent and documented search, otherwise there’s no limitation on damages and you can claim punitive and legal fees.

    Dan Heller’s take on it is worth reading:

    According to Duncan Davidson, a talented photographer who knows his stuff, you *already* have to register your work otherwise you can only claim actual damages (not punitive or legal fees):

    If this is true, is anything really changing too drastically from how it stands at the moment? If you already have to register to obtain proper protection and this bill’s overall effect will be to make this registration cheaper, quicker and easier, as well as making searching for copyrighted works cheaper, quicker and easier – thereby making the ‘I couldn’t find it’ argument much harder – then isn’t this a good thing?

  18. @Antinous

    “….For paintings, put a small photo on your website with a © and you have dated digital proof, so there’s no reason to register it.”

    but under the new Orphan Works bill, that will no longer protect the artists.

  19. “the only way to get the actual truth is to read the actual bill.”

    Unfortunately Congress has a nasty habit of inserting amendments at the last minute. Also, once the house and senate pass legislation if there are any differences in the bill they form a committee to hash out the differences. This can also substantially change the character of a bill. There is really no way to know what impact this bill will have until after it is passed. Probably not even then.

  20. Wow, I hadn’t seen Lessig’s opposition… time to go back and read that bill again! I guess there are still some problems with the bill even once the misconceptions are cleared up :/

  21. Public Knowledge also supports this bill, and Gigi Sohn responds directly to Lessig’s op-ed:


    Maybe Lessig is letting the perfect be the enemy of the good? Or is the bill flawed enough that we should hold out for a better orphan works bill? I’m still inclined to support the bill if both the EFF and PK support it, but Lessig’s concerns are worth taking into account.

  22. It’s not about if this is a good bill or even if there could be a better one. The question is; should there really be an “orphaned” bill at all?

    Referring to work as “orphaned” is a huge mistake. Work that’s been stolen, copied, scanned, posted, reposted and then finally reused should probably be considered kidnaped.

    This bill was drafted so people could make money easily and cheaply off of others hard work, and it’s a little naive to think that drafters had artists’ best interests in mind.

  23. I’ve read a number of screeds against this law, and all of them have two things in common:

    1. Near-complete ignorance about existing copyright law. Most of the stuff that sounds vague and hard-to-enforce is already the law for non-registered works.

    2. Opposition, sometimes openly stated, to the very idea of orphan works — or, for that matter, a public domain. They aren’t so much afraid of their work being stolen as they are of millions of images and illustrations being unlocked and available for publishers and other artists to use. Some artists fret that they won’t be able to make a living doing generic illustrations and stock images because they cannot compete with free. This is true, and exactly the point of the law. It isn’t a good idea to force everyone to pay an inventor to come up with the wheel when we already have perfectly good ones. The more generic or stock imagery that makes it into the public domain, the more advancement in the arts we should see. People have to do something different and unique. The mediocre will have to find another line of work that actually benefits society.

  24. It should be my right as an illustrator to choose who I work for. I would never say yes to an offer from the Church of Scientology, or the Catholic church for that matter, but under this bill, I could be denied the right to say no.

    Also, registering every sketch, every version, and every final I create would cost a gazillion dollars- just think of how much one sketch session in the subway could cost!

  25. Bah… copyright is theft.

    Nobody, not even artists, has a right to a business model which never changes.

  26. “The mediocre will have to find another line of work that actually benefits society.”

    Ha, ha, ha! Like stealing other artists work? If this bill goes through stealing work will be big business. Personally I’d rather see more people creating.

    I don’t know which artists you’ve been listening to about this Anonymous, but all the people I’ve heard speak out against this bill are very original, very competent artists. Artists who have already had work stolen overseas, and are simply afraid of people doing the same here with the law backing the thieves up.

    It’s not up to you or I to decide if an artist is talented enough to make a living — it’s up to the marketplace. A bill like this would decimate that marketplace for artists, and the first to feel the pinch would be the lovely, exciting fringe creators out there.

    People who make boring, generic work are usually pretty well established and would be able to weather a lawsuit or two no problem. It’s the little Joe/Jill indy-comic crowd that’s going to get screwed.

    It’s legalized plagiarism, and I don’t know any writers or musicians who would allow a bill like this to pass. Art something that by it’s very nature is nonessential. So bottom line, stealing it isn’t going to save any lives.


    1. Lloyd Shugart – May 30, 2008

    There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught.

    The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass.

    Lloyd Shugart
    Unintended victim


    full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/

    I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.

    I am the POSTER CHILD for why this is bad for the copyright creators.

    I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD.

    US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPHAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.

    My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”

    So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.

    As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.

    How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.

    Propet USA v. Lloyd Shugart WD WA. Federal Court

    Lloyd Shugart

  28. My family doesn’t eat publicity. by Lloyd Shugart on Jun 3rd, 2008 @ 10:05am

    http://community.nytimes.com/article/comments/2008/05/20/opinion/20lessig.html?s=2&pg=1 May 20th, 2008 5:30 pm Link I am a photographer who has worked for over 40 years. To a large extent, my retirement and estate will consist of the value of my copyrighted archives. The current proposals for the resolution of the “Orphan Works” problem will no doubt destroy much of the value of my work, since images can so easily be taken off the Internet, stripped of identification and distributed. This has happened to me. One image, which came to be important in the 2004 presidential campaign had been taken in 1970. It was stripped of copyright information and published over 400 times on the web. It was intentionally “orphaned”. Many infringers did not even strip the copyright, they published it without permission or a license and claimed I shouldn’t complain. “It is free publicity.” My family doesn’t eat publicity. The bill is a disaster for all intellectual property workers. If the government can list sex offenders and campaign contributors on the Internet, they should be able to manage copyright. — Leif Skoogfors, Philadelphia, PA Recommend Recommended by 9 Readers

    (reply to this comment) (link to this comment)
    It was a lonely search. by Lloyd Shugart on Jun 3rd, 2008 @ 10:56am


    According to Marilyn Henry, author of Confronting the Perpetrators: A History of the Claims Conference, the process of reclaiming looted art has always been one of the most prickly of all Holocaust restitution issues.

    “Countless Nazi victims spent decades trying to find artworks that once belonged to their families. It was a lonely search. The burden was on the victim to find what had been taken, to prove it belonged to him and to convince whoever had it to give it back,” she says from her home in New York.

    “Imagine looking for a needle in a haystack, finding the needle, and being told by the haystack owner that you had to prove you owned the needle before the war, and then convince him that he should return the needle to you.”

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