"Orphan Works" not addressing important issues!

Steve Haynie, treasurer for the Southeast Chapter of the National Cartoonists Societty, just sent this link on the "Orphan Works" legislation that is being discussed in Congress. You'll recall that this was a hot topic in 2006 that got dropped when that Congressional session ended, but it's back.

http://www.copyright.gov/docs/regstat031308.html

You may want to look at this testimony from a representative of the Copyright office at length. It's about 20 minutes worth of read (and like most "legalese" may cause mild headache and dizzyness in those of us not accustomed to its use).

While I have to respect that the Copyright office has done some to address concerns about throwing the doors open to copyright abuse that were inherent in the 2006 version of this legislation, the couple of bones they seem to be offering to the "other visual artists" (I have to say I sort of resent being listed as a sub-category of Photographers) don't appear to truly address the issues.

First of all they have allowed for owners of works that are not truly "orphaned" that are "mistakenly" used by another party to be "reasonably compensated". The rate of reasonable compensation appears to be set at $200. While this might be true compensation of some works at this time the Copyright office seems unaware that visual artists usually price their work by applying any number of criteria for the use.

Additionally, this "improvement" has a loophole that you might miss if you don't read carefully. If the "mistaken user" (I didn't notice a lot of use of the term "infringer" in this testimony) removes the offending work from use "quickly" he or she is not liable for that resonable compensation. In other words if some advertiser lifts your work, runs it during the Superbowl, you find out about it and they never run that commercial again, they don't owe you a red cent. At least that's how I read this.

There seems to be a rather Pollyanna-esque view on the part of the Copyright office that nearly all of the people clamoring to use "Orphaned Works" are museums and libraries. I'm not sure, but I suspect that most of us "other visual artists" would not mind if museums and libraries used our works even if we clearly hold copyright…unless it's uncompensated print sales, and things like that. This view ignores the fact that in the past twenty years that advertising agencies have resorted more and more to clip-art rather than hiring illustrators for unique creations. While this has offered them a greater profit margin, it's been rough on those of us trying to sell those illustrations. However, some of us have managed to get our work used in spite of this mentality, while others have adapted and packaged works for use as licensed clip-art.

This legislation seems to open the door to abuse by almost anyone in the advertising field. Offering them the opportunity to A) use any work they happen to see in their own local market hoping that the actual copyright owner will never be aware that their work has been infringed upon, B) that if caught they can hopefully argue that they were unaware that the work was NOT in public domain, and if all other remedies fail they can C) pay a minimal rate arbitrarily established by the Copyright office and not reflecting any of the criteria normally used to negotiate compensation.

In other words, this legislation says to would be art buyers: "Big sale on art today! All pieces just $200 (if you get caught)".

I am also particularly upset by a missing part of what should be inherent in Copyright protection; the right to associate my work with movements, products, or persons that I wish to be associated with. This is the cardinal rule I look at when negotiating any contract. I have never been simply a "gun for hire". I debate long and hard with myself before agreeing to work on any project, no matter what kind of compensation I am offered. By my reading, this legislation in no way addresses that right.