Visual Artists: Recent Orphan Works Rumors Are Not True

After a podcast interview last week in which an illustrator claimed that artists will lose copyright protection if they do not speak up, a campaign of misinformation has quickly evolved, causing some in the creative community to express outrage at the Copyright Office, perceiving it to have an agenda directed at stripping artists of their rights. Visual artists are understandably frustrated because of the ease with which their images can be copied and spread online and the difficulty in protecting their work. This campaign, however, does not adequately channel those frustrations because it is based on solid misrepresentations of Congress’ copyright review process and the Copyright Office.

The video makes several completely false claims, including (1) that Congress plans to completely rewrite the current Copyright Act; (2) that there is orphan works legislation pending; and (3) that artists should voice their concerns about the orphan works legislation to the U.S. Copyright Office in response to their Notice of Inquiry on Copyright Protection for Certain Visual Works. Let’s take a closer look at each of these.

Status of the Copyright Review Process

The House Judiciary Committee recently completed a two-year copyright review process to assess what is working and what is not working. As Chairman Goodlatte said at an early hearing, “[F]rom time to time, it is important to stop and listen to what our Nation’s creators have to say about whether the incentives are still working to encourage innovation. This Committee’s review of U.S. copyright laws provides the perfect opportunity to do just that.” But Goodlatte has also made it clear on several occasions that the goal of the hearings is not a complete rewrite of the Copyright Act, or necessarily any legislation at all. The hearings wrapped this past April, and Goodlatte noted that the next step in the review process would include inviting input from all stakeholders on copyright issues. The Committee announced this week the beginning of that phase, which will no doubt extend through the fall.

There is no orphan works legislation pending before Congress at this time

The Copyright Office did publish a study on orphan works and mass digitization in June that reflects substantial public input. The study recommends legislation addressing orphan works similar to a 2008 bill that failed to pass. The bill would limit remedies for a user of a work who failed to locate or identify the copyright owner after a good faith diligent search.

The Copyright Alliance has publicly stated that it would be prepared to support appropriately scoped, constructive orphan works solutions so long as they are “targeted toward maximizing the chances of identifying authors rather than creating a list of orphaned works that can be used without paying royalties.” However, the Copyright Office’s recommendation remains a recommendation, and there are not currently any further notices or hearings on orphan works.

Regarding mass digitization, the Office recommends Congress create a five-year pilot program of extended collective licensing (ECL) for literary works, pictorial or graphic works embedded in literary works, and photographs. In an ECL, “the government authorizes a collective organization to negotiate licenses for a particular class of works … for a particular class of uses … with prospective users.” Significantly, the Office is proposing the pilot program to be an opt-out system for the relevant classes of copyright owners. In other words, visual artists who do not wish to be represented by a designated collective management organization will be able to do so if and when the ECL pilot program begins. The Copyright Office is currently seeking comments from interested parties that can provide specific recommendations on how this program might operate and how CMOs can be held accountable to the artists they will represent. These comments are entirely separate from the comments that are due on July 23.

Copyright Protection of Visual Works

The comments that are due on July 23 are intended to respond to the Copyright Office’s Notice of Inquiry on the Copyright Protection for Certain Visual Works, which “seeks commentary on the current marketplace” for photographs, graphic artworks, and illustrations, and what significant challenges visual artists have monetizing, licensing, enforcing, and registering their copyrighted works.

The frustrations of visual artists are indeed valid, and we have described some of these challenges in our own comments to the Copyright Office submitted in recent years – for instance, the inadequacies of the registration system, the prohibitive cost of litigation and the heavy burden of the DMCA notice and takedown system for creators of high volume/low individual value works which make it more difficult for visual artists to enforce their copyrights. Rather than advocating for new laws that would require the artist to register their work, the Copyright Office is specifically looking to educate itself on the challenges visual artists are currently facing in registering and enforcing their work to make the best recommendations for Congress so that visual creators have better protection, not worse.

Visual artists’ concerns are valid and should be heard

It is extremely important for all creators to make their voices heard, but we encourage visual artists to make sure they are fully informed of the issues so that their voices are most effective. Artists who provide comments directed to the Copyright Office in response to their Notice of Inquiry on the Copyright Protection for Certain Visual Works should focus on their relevant experiences to answer the NOI’s five questions:

What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?
What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?
What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?
What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic art works, and/or illustrations?
What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

Campaigns to discredit the work of the Copyright Office are not helpful to the copyright debate. The Copyright Office has long sought input form all copyright stakeholders and in particular has taken care that it hears from individual artists and creators. As Register of Copyright Maria Pallante said during the final copyright review hearing:

I have been especially inspired by the stories of authors across the country, many of whom took time to talk with me personally, including songwriters, recording artists, producers, photographers, graphic artists, book authors, dramatists, and independent filmmakers, all of whom want to be credited and compensated for their work. As Register, it has become clear to me that the intelligent and connected world we live in depends heavily upon the creativity and discipline of authors.

photo credit: scyther5/iStock/thinkstock

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