Back in the day it was much easier being an artist because there weren’t forces working against you. It’s important to remain creative and somewhat ignore these outside issues because we believe greatness will rise to the top. On the flip side, artists today should be a bit more educated. Its not exciting talking about copyright laws and it can be a bit boring, but there is a dark reality that exists in this universe that we must face. It’s another reality working against independent artists…

Orphan works are basically works whose copyright owners cannot be located. ‘The term “Orphan Works” is really a dangerously misleading phrase’.

The reality is that for independent artists, the majority of your published works may well become Orphan Works. Even if you registered your songs or tracks at the Copyright Office, there is no mechanism for identifying you or your photograph or for locating you through those records, if the user does not know your name.

Under the proposed legislation, a person who wants to use a copyrighted work is required to make only a “good faith, reasonably diligent search” to locate the copyright owner. If, after making such a search, the user is unable to locate the copyright owner, he/she/it gets an almost free license to use the work. If the copyright owner never comes forward, the user gets to use the work for free. Even if the copyright owner discovers the use and demands payment, the MOST the copyright owner can get is “reasonable compensation,” i.e. a reasonable license fee for the use actually made.

Wait, it gets worse: If the copyright owner discovers the use and demands payment, “where the infringement is performed without any purpose of direct or indirect commercial advantage, such as through the sale of copies or phonorecords of the infringed work, and the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement, no award of monetary relief shall be made.”

The fact that the potential compensation is so low presents a fatal impediment to collection: if you discover one of your works being used and demand only your reasonable licensing fee, but the person refuses to pay, you cannot afford to sue to collect the minimal amount to which you are entitled. Without the possibility of an award of attorneys’ fees or statutory damages, no lawyer would take your case; and if he or she did, you would end up paying far more legal fees than you could possibly collect.

The bottom line is that, even if you have done everything right, including registering your photographs immediately at the Copyright Office, every photograph that you publish may be up for grabs if it doesn’t have a published credit. Yes, people have to contact publishers to try to identify and locate you, but if that doesn’t produce your name and/or contact information for any reason, they may be entitled to a free, or almost free, pass. (ASMP)

The “Orphan Works Act” tries to solve in few pages all problems with orphan works for the entire creative community and quite predictably misses volumes of nuance and mandates a largely unworkable morass.

The “Orphan Works Act” legislation could come up for a vote at any time—it is important to take action immediately.

Google, Microsoft, MPAA and RIAA support the legislation. The American Association of Independent Music, the National Association of Music Publishers, the Association of Independent Music Publishers and the American Federation of Television and Radio Artists all have very serious concerns about the negative impact of the legislation on creators and independent copyright owners and are attempting to amend the proposed bills to protect creators and owners.

The independent artist community cares about the proposed bill because they usually own their own copyrights and are much harder to locate than major label artists. Independent artists are directly and negatively affected by the legislation.

The major problems with the Orphan Works Act are:

One Size Fits All: “Orphan works” was supposed to help “altruistic” users, like museums, libraries, and cultural archivists who are making valuable contributions to our historical and cultural heritage by protecting them from the historical liability for copyright infringement (statutory damages and attorneys fees). The idea was that these non-commercial sources would make available to the public those works whose authors could not be found after a search by responsible people.

But–the legislation now applies to both “altruistic” and purely commercial business infringers. (Google has testified they intend to use “millions” of orphan works.) The opponents of the legislation don’t have much of a problem with “altruistic” uses, but they do object to the same standard applying to very large commercial business interests with little incentive to find the copyright owner.

Limitations on Search Technology: The legislation requires the infringer to make a “reasonably diligent search” for the copyright owner—unsupervised and self-policed. This search will inevitably include privately owned databases and registries as copyright owners have not been required to register for copyright protection since 1988 so the Copyright Office registration database is of little utility. However, the technology simply does not exist to conduct exhaustive and accurate searches for sound recordings, songs and especially audiovisual or visual works.

No Limitation on Source Materials: The legislation permits infringers to start their searches with source materials downloaded illegally. There is no requirement that the infringer use commercial copies of the works they want to search, so the legislation could easily allow an illegal copy to become legal if it is orphaned. Owners of live recordings are especially difficult to identify, so their works may become inadvertently orphaned.

No Notice is Required: The infringer is not required to post a public notice of the orphan work with the Copyright Office—the Senate bill has no notice requirement; the House bill only requires the notice be kept in a “dark archive”. The “dark archive” can only be penetrated with a court order. The only way a copyright owner would know that their work had been used would be if they happened to hear about or encounter the use.

No Limitation on Use: Orphan works can be used for anything, including a political advertisement, pornographic film, or commercial. The infringer can also manipulate the work in a sample or mashup beyond recognition. The Orphan Works Act allows the infringer to claim a new copyright in the manipulated work and prohibits the original copyright owner from getting an injunction to stop the use .

Copyright Owners Must Sue to Get Paid: The infringer can fully exploit the orphan work and only has to pay “reasonable compensation” if they ever get caught. If the copyright owner and the infringer disagree on “reasonable compensation”, the issue will be decided by a court if the copyright owner can afford the litigation. Otherwise—nothing happens. The infringer has little or no reason to be “reasonable” when he knows that the copyright owner will have to incur the expense of litigation if the copyright owner doesn’t accept the infringer’s offer of “reasonable compensation”. An independent artist must find a contingent fee lawyer to take their case in a totally new area of the law–without the big stick of statutory damages.

Washington Overrules the Artist’s Right to Say No: Record companies often give their artists approval rights over licenses of their recordings. The paradox of the legislation is that it creates a situation where a copyright owner would be in breach of contract if it approved certain infringing uses if the infringer made a use that was prohibited by the recording artist agreement. The infringer would have greater statutory rights than the copyright owner/record company’s contractual rights granted by the artist. Because there is no restriction in the legislation on the kind of use that can be made of an orphan the copyright owner/record company would be unable to negotiate for reasonable compensation even if they wanted to. So a pacifist artist could find their recording used in a military recruiting commercial and there wouldn’t be a thing they could do about it.

Plus if the work was a recording that had been made under a union collective bargaining agreement, the copyright owner would be required to pay residuals if she approved the use whether or not a court included union payments in “reasonable compensation”. The legislation ignores both these likely outcomes.

Further Background Information

The “Orphan Works Act” legislation could come up for a vote at any time—the Senate bill (S 2913) has passed the Senate Judiciary Committee and the House bill (HR 5889) has passed the IP Subcommittee. The legislation was introduced on April 24. We have been advised that Rep. Berman (D-Hollywood) (chair of the IP Subcommittee in the House) wants to have the bill passed before the end of June.

Tom Sullivan, Chief Counsel for Advocacy at the Small Business Administration, is focusing on the problems caused by the bill. The SBA plans to hold economic impact roundtables during the month of June in Washington as well as New Orleans (for the impact on Katrina victims). If any you wish to participate in these roundtables, please contact advocacy@sba.gov.

What Can You Do?

Write your Senator and Representative! We have a sample letter for you to use if you want, but it’s always better to say it in your own words.

Letter Writing Campaign

A number of groups have started a letter writing campaign, including the Illustrators Partnership who have established a Capwiz website at http://www.capwiz.com/illustratorspartnership/home/. Sample letters are available for constituents to write to Members of Congress. The Illustrators Partnership has generated over 70,000 letters from visual artists and photographers.

For further information about the Orphan Works Act:

1. Contact Representative Lamar Smith: http://lamarsmith.house.gov/

2. Contact Senator John Cornyn: http://cornyn.senate.gov/public/

3. Artists, Musicians and Vocalists: www.aftra.org

4. Songwriters and Publishers: www.songwritersguild.org, www.nmpa.org, www.ascap.com, www.bmi.com, www.sesac.com

5. Illustrators and Photographers: http://www.illustratorspartnership.org

6. U.S. Copyright Office: http://www.copyright.gov/orphan/

7. For a contrary view, see Texas Digital Library http://blogs.tdl.org/digitize/2008/05/31/market-opportunity-knocks-and-knocks-and-knocks-2/

Dated __________

[Send to both your U.S. senators and your Congressional representative and to advocacy@sba.gov]

Re: The Orphan Works Legislation (S. 2913 and HR 5889)

Dear ____:

I am writing to express my concern about the “Orphan Works” legislation. Until I heard about it from the Kings of A&R I had no idea what an “orphan work” is, or that the legislation even existed, but now I know about it I’m really concerned.

I am an independent artist/songwriter. I earn my living playing live shows and selling CDs and merchandise at the shows I play. I sell CDs mostly online through sites like the Kings of A&R and on consignment at my local record store. I hope I am lucky enough to have my music used in a compilation record, TV show or movie I like, or maybe in an advertisement for a product I believe in and want to be associated with.

I have reviewed the legislation and believe that unless the bills are very carefully crafted, the proposed new law is essentially a new compulsory copyright license for both commercial and noncommercial users that could have a serious negative effect on independent artists like me.

I hear that the RIAA, MPAA and Google support the legislation. Well, the American Association of Independent Music, the National Association of Music Publishers, the Association of Independent Music Publishers and the American Federation of Television and Radio Artists all have very serious concerns about it, too. Trust me, there are a lot of “little guys” out there that aren’t big enough to even be connected to those groups, and we care about it, too.

As far as I can tell, nobody in Washington has even tried to find out what the economic affect of this bill will be on independent artists. You should think about how much we contribute to the economy—when we work we pay lots of taxes on our income, plus gas tax, parking tax, hotel tax, not to mention parking tickets when we’re trying to load our equipment into clubs.

In addition to taxes, we buy a lot of musical instruments and we are the reason people go out to hear music! That’s jobs for nightclubs, restaurants and taxi drivers and they all pay taxes, too.

Please listen to these criticism of the bill:

1. One Size Fits All: “Orphan works” was supposed to help “altruistic” users, like museums, libraries, and cultural archivists who are making valuable contributions to our historical and cultural heritage by protecting them from the traditional liability for copyright infringement (statutory damages and attorneys fees). We’re the first people that get asked to do benefits for these kinds of places—for free—and we like them. Helping these people is fine with me and I don’t know anyone who would not agree with that. But why do you have to give the big commercial interests the same benefits?

2. Washington Overrules My Right to Say No: Record companies often give us approval rights over how they license our recordings, and we have the right to control how people use recordings we own—or we did. Your legislation ignores these time honored traditions and permits an “orphan work” to be used for anything, including a political advertisement, pornographic film, or commercial. That never happens in the real world! We always get a say. Why can’t you just cut out those kinds of uses from the law?

3. Search Technology: The legislation requires the infringer to make a “reasonably diligent search” for the copyright owner—unsupervised and self-policed. That doesn’t work in college football and it’s not going to work here. Those searches will include privately owned databases and registries—whether you require registration or not. To say that we aren’t required to register is no answer. If we don’t register, we won’t be found, not to mention that we may not register the same day we create the song or track. Plus there is no technology that allows you to search for visual images, so all of our artwork is up for grabs.

4. Limitation on Source Materials: Your legislation doesn’t stop people from basing their searches on illegal downloads. It’s hard enough to deal with illegal downloading as it is, and this law would let someone take an illegal download and make it an orphan, so they get out of damages. Why can’t you do what we do when we want to find a publisher for a license on a cover song or a sample? We get a copy of the original release and see what information is listed on it. Isn’t that what you would do if you really wanted to connect people with copyright owners?

5. No Notice is Required: I really don’t understand why you don’t want to make people file a public notice of what they’re up to. I don’t understand how the “dark archive” helps anyone but someone trying to rip me off. What’s the big secret?

I don’t want to seem disrespectful, but I always thought the Congress was supposed to protect us? I don’t see how you’re doing that.

Sincerely,