Monday, January 12, 2009

Brad Holland Responds to Public Knowledge

Some of you may recall my interview with Alex Curtis concerning the Orphan Works bill. Alex is the Director of Policy and New Media for Public Knowledge ( -- a Washington, D. C. based ‘public interest group working to defend citizen’s rights in the emerging digital culture‘. I invited Mr. Curtis to share his views concerning Orphan Works and to find out why Public Knowledge supports the bill. That interview can be found, HERE .

Legislative action concerning orphan works is a very controversial subject due to the fact that copyright protection and the rights of artists become a target. It is important for opposing views to be documented and considered when evaluating this bill. Thus, I contacted Brad Holland, co-founder of The Illustrators Partnership of America (IPA), with the need for an exchange over this issue in mind. Mr. Holland advocates for the preservation of creative copyrights on intellectual property.

Below you will find Brad Holland’s point by point response to the opinions that Alex Curtis of Public Knowledge expressed during his interview with the Myartspace Blog. I will continue to explore this issue on the Myartspace Blog. Feel free to take part in the debate.

Curtis: To use someone else's copyrighted work, generally you must ask the owner's permission. Because the term of a copyright lasts so long today (generally 70 years after the owner has died, or 95 years from publication if the owner is a corporation), it's quite possible an old work you might find today is still under copyright, even though the owner is dead or has gone out of business. That leaves millions of works, many of historical significance, unusable because no one can find the owner to ask permission, and the law requires permission.

Holland: The law requires permission from whom? For what? According to the drafters of the 1976 Copyright Act:

[I]t is important to realize that the [1976] bill [our current copyright law] would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights. SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (Emphasis added)

So in other words, the intent of the proposed Orphan Works legislation is to change the law to permit “the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights.”

Curtis: [W]orks without owners have been called "orphan works." The target of orphan works policy is those kinds of works, for which no owners exist.

Holland: Actually, that’s not true. The Orphan Works Act would redefine what an orphaned work is. When Chairman Berman held the single open hearing on this bill March 13th, he finally admitted that. I’ll quote him exactly:

“[W]e should correct a misnomer,” [he said]. “The works we’re talking about are not orphans...The more accurate description... is probably an unlocatable copyright owner...But for the sake of ease we’ll keep talking about them as if they’re orphans.”

With all due respect to the Congressman, if this bill isn’t about orphaned work, it shouldn’t be passed as if it were. Conversely, if its goal is to make the work of ordinary citizens available as commercial content to large internet databases, then such a radical change to private property law should be debated openly on its own merits, not snuck through Congress as an orphan works law – not even “for the sake of ease.”

Curtis: The aim of orphan works policy is to allow someone to use a work, whose owner can no longer be found, under some narrow but necessary conditions: #1.The user has to know the owner cannot be found by conducting a "qualifying search" for the owner.

Holland: The language of this bill defines an infringer’s “qualifying search” as one that is reasonable and diligent, but reasonable diligence is never defined. These ambiguous terms would be left to courts to define on a case-by-case basis. Since any work might become an orphan in one lawsuit and not in another, it would take a decade of expensive lawsuits and appeals before anybody could be certain how the law will ultimately define these irresponsibly vague terms.

Curtis: #2. After a search, if an owner is found or emerges, the user must negotiate with the owner in good faith to determine reasonable compensation for the use;

Holland: Since orphan works transactions would occur only after infringement, the rights holder would have no leverage to bargain for more than the infringer is willing or able to pay. Unless the artist accepts whatever the infringer offers, he’ll have to go to court. And since serial infringers will try to establish low “reasonable” fees, these fees would effectively become the legal standard for “reasonable compensation” in lawsuits regarding orphan work uses.

Curtis: #3. If a search is conducted and no owner is found, the user may use the work and avoid any statutory damages or injunctions for his infringement. In the unlikely event that the owner returns even after a search, go back to #2; [italics added]

Holland: This argument is right about one thing: it’s “unlikely” that the owner of an orphaned work will show up “even after a search.” That’s because you can be infringed anytime, anywhere in the world and never find out about it. And remember, while the infringer only has to do a “reasonably diligent” search to find you, you’ll have to do an absolutely successful search to find him.

Curtis: #4. If a user's search was a sham or wasn't diligent enough and the user used the work anyways, when the owner returns, the user can be held liable for plain ole' copyright infringement.

Holland: This shows that the bill is of no use to you unless you go to court. And you should not have to go to court on a regular basis to contest the diligence of some infringer’s search or to prove the value of your own work for uses you never authorized. As a business person, I make my living from voluntary business transactions, not expensive lawsuits with uncertain outcomes.

Curtis: Public Knowledge supports orphan works policy because we believe it introduces some common sense back into copyright. If a creator is long dead and gone and there are no discernible heirs or transfers of the copyright, what is the justification for no one using the work? Entire generations may never see that work because it hasn't yet fallen into the public domain because of the length of copyright. Even worse, that work could deteriorate before it falls into the public domain, and thus lost forever.

Holland: If the purpose of the bill is to free up the use of work by artists who are dead and don’t have heirs, then why have the doors been opened wide for the work of living artists to be infringed?

Curtis: Lastly, I've heard artists concerned that their work would be "dubbed an orphan" or "declared an orphan," but that's not how the legislation works.

Holland: Yes, that is how it works. As Chairman Berman said, the bill would redefine an orphan as “a work by an unlocatable author.” This would let any person infringe any work by any author at any time for any reason – no matter how commercial or distasteful – so long as the infringer found the author sufficiently hard to find. Since everybody can be hard for somebody to find, this would radically re-define the ownership of every person’s intellectual property.

Curtis: One problem that I don't believe the bill sufficiently addresses is the problem of copyright registration...Visual artists especially find the registration process expensive and tedious, and worse yet, those who use it still cannot be found, online or otherwise. We want to make sure owners that exist today are able to be found, so they can be paid for their work and no one can claim that their works are orphans.

Holland: Nothing expresses the looking glass logic of this bill’s advocates better than the argument that artists need it because we can’t be found. Even a quick glance at a newsstand should dispose of that one:

Take Vanity Fair, The New Yorker, Time, Vogue, just for examples. There are thousands of magazines and newspapers out there filled from cover to cover with photographs and art. And that doesn’t count the billions of images published in trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards, greeting cards, surface and fabric designs. How can anyone be surrounded by this sea of images and seriously argue that we need this bill because nobody knows how to find artists.

Curtis: The concern...where an owner's work could be used for something that she does not stand for, or in a way that she doesn't agree with, is one I understand that some artists are very worried about. I do not want to dismiss this concern out of hand, but there are some incorrect notions I want to dispel. First, nothing in orphan works policy gives the user of an orphan work copyright rights in that orphan work. The user of an orphan work is called an "infringer" under the law. Period. There is no transfer of rights, even if the user did a qualifying search.

Holland: Two points: To the extent that this statement is true, it’s irrelevant. That is, if someone has used your work without your knowledge, it doesn’t matter if they’ve received a transfer of rights or not; they’ve used your work without your knowledge. Period. That has all kinds of ramifications. But in fact, there are cases where the proposed law would let an infringer claim a transfer of rights: all he’d have to do is alter the work slightly, call it a remix – legally, a derivative work – then copyright it in his own name. Do that and it’s his.

Curtis: I've read suggestions that artists would be in breach of their exclusive rights licenses because orphan works policy allowed someone else to use their work. It's just not true. Infringers are infringers, and their use would not legally interfere with an exclusive contract between the owner and a licensee. Just as you, as an owner, would have no control over whether someone infringed your work, likewise you have no control over whether someone used your work as an orphan--both are infringement.

Holland: The key phrase here is that these infringements “would not legally interfere with an exclusive contract...” This isn’t a legal issue; it’s a business one. Clients aren’t going to care whether you can or can’t take some infringer to Federal court if work you licensed to the client for exclusive usage turns up being used somewhere else. Clients aren’t going to pay you for rights you can’t sell them – and under this law you wouldn’t be able to sell them a guarantee of exclusive usage.

Your exclusive right matters for three reasons:

Creative control: No one can change your work without your permission;
Ownership: No one can use your work without your permission;
Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.

The Orphan Works Act would void that exclusive right:

• It would permit anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work, or even alter it and call it his own.
• And since you can be infringed without your knowledge anytime, anywhere in the world,
• You could never again guarantee a client that your work has not been – or won’t be – infringed.
• Therefore you could never again guarantee a client that the work you licensed to him won’t be used by some other commercial interest –even by a competitor.

That means that from the moment this bill takes effect, every artist’s commercial inventory would be devalued by 2/3 its potential value.

Curtis: Today, once someone infringes on your copyright, it has already happened and the toothpaste is already out of the tube. That user would be an infringer. The infringement happened without you knowing and there's nothing you could have done to stop it. He used your work without even bothering to look for you to ask your permission--probably because he never thought you'd find out or because he was too lazy. But that's the case even without orphan works, and there's nothing, besides court awarded damages, that could address it.

Holland: It’s true that under the current law, infringements occur. But they’re illegal! This bill would create an entire class of legal infringements in which bad actors would be able to hide like needles in a haystack.

Curtis: At least under orphan works policy, that same user would be required to have searched for you and if he still didn't find you and he still used your work, you would be reasonably compensated for that use. If he doesn't do those things, you're in the same spot as with a regular infringer.

Holland: This isn’t logical. The person who steals your work now will probably steal it under the Orphan Works law. A crook isn’t suddenly going to start doing “diligent searches.” But what this bill would do is create an entirely new class of infringements that would never be legal under current law, but would be perfectly legal – even encouraged – once this bill passes.

Curtis: [I]f the [orphan works] infringer claims he did a search for you, he's got to show it to you up front, which will make it easy for you to determine whether he's a fraud or good-faith user so you can begin negotiating compensation.

Holland: Two points.

First, this is a disingenuous comment, because unless this bill passes, you’d never have to determine whether an infringer is a fraud or not. Under current law, infringers can’t use your work without your knowledge. But no, under this bill, the infringer would NOT have to show you evidence of a search up front. In fact, he wouldn’t have to show you anything ever unless a.) you found out that he had infringed you and b.) you successfully identified him, tracked him down and got him to respond. And even then, he wouldn’t have to show you anything unless you filed a lawsuit in Federal court. Only then could you ask to see what paperwork he did or didn’t file.

Second: if you do track down an infringer, what are the chances he’ll have a Perry Mason Moment and confess that he’s guilty of theft? He’ll just say it’s an orphan works use and dare you to sue. And under this bill, if you do sue, you’d better be sure – in advance – that you’ll win, because otherwise, without the possibility of statutory damages and attorneys’ fees, it’ll be too expensive to lose. And since lawyers won’t take cases like that on contingency (because there’s no guarantee the infringer will have to pay), this law will effectively deprive you of legal counsel, expert witnesses, court costs, etc. - the very tools you’d need to legally prove bad faith in court.

And oh yes, there’s a third point: While the Orphan Works bill would limit the damages you could get from an infringer in a lawsuit, there are no limits on the damages an infringer could get from you in a countersuit.

Curtis: [I]f someone uses your work as an orphan work after a search, but just copies it and doesn't add any value or include it in anything with their own original expression, then you could restrain, or obtain an injunction for, their future use. And you would be reasonably compensated for the use.

OK, so if you’re an infringer, you’ll want to “add some value” to the work you steal. Tack on something with your own “original expression.” Crop the picture, photoshop in an extra tree, draw a mustache on somebody and you’ve added value.

Curtis: As for continued use of a work, if the orphan works user used the work in such a way that "recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer's original expression..." the user can keep using the work but must pay the owner for that use, and give attribution to the owner if the owner so desires.

Holland: In other words, as I said, once the infringer has legally orphaned your work and “added value,” it’s his. You can’t even show up and stop him from using it.

Curtis: I've heard concern that somehow large corporations are going to claim orphan works as a way to somehow get a "discounted" license fee. I don't see how this is possible.

Holland: Anyone who works in the marketplace would see it immediately. The databases this bill would create will be for-profit enterprises. To make money, they’ll have to do a lively business supplying orphaned works for commercial usage. That means harvesting millions of orphans and promoting infringement. We’ve never seen a business plan, but it’s a safe bet they’d operate like stockhouses do now – but without first having to license their inventory from artists:

• Some will provide internet access to orphans as royalty-free work and take their profits in advertising revenue.
• Others will harvest orphans and market them as clip art.
• Others will harvest orphans, alter them slightly to “add value” and register the “remixed” work as their own copyrighted product.

A lot of one-stop shopping centers for cheap art are certain to spring up. This will unjustly alter the nature of competition in commercial markets. How many artists who actually create the work they sell will be able to compete with large internet databases that can provide clients with free or cheap access to the work of others?

Curtis: If the user is some big corporation, reasonable compensation is going to have to reflect that. Compensation would also have to take into account how the work was used for it to be reasonable--including the context of the use, to take care of the potential controversial cause or damage to the artists' reputation.

Holland: Let’s review Business 101: Normal commercial transactions are the result of bargaining between two or more parties. That way, both sides in the transaction know that the transaction has occurred and what the terms are. Orphan works legislation would change that. It would create a class of single party transactions, in which the user is aware that a transaction has occurred, but the owner of the property that’s been exploited may never find out about it. There’s another name for single party transactions: theft.

Curtis: I would think that every corporation would want to find the owner and license the work up front, because if they spend the money to conduct the search and still come up empty handed, there's still the possibility that they will have to compensate an owner if she emerges. Every orphan works owner (sic)[Doesn’t he mean “user”?] has every incentive to find the owner, because they know they will have to pay for their use when an owner returns.

Holland: Big corporations are not going to go scrounging around looking for the rights to use certain little pictures. They’re going to go to the orphan works supermarkets this bill will create. Opportunists are already coming out of the woodwork; orphan works domain names have been snapped up. These firms will harvest work off the internet and other places, automate the process of diligent searches, plop the orphan works symbol on the pictures they clear and market them to clients at below-market prices. Anyone who’s familiar with what stockhouses are already doing will recognize the business model. It’s just a simple variation on current practice, only ramped up to Walmart proportions by the opportunity to get millions upon millions of new images at little or no cost.

But please note the apparent contradiction between this statement by Mr. Curtis:

”Every orphan works owner [“user”?] has every incentive to find the owner, because they will have to pay for their use when an owner returns..”

and this one (his point #3 above):

“If a search is conducted and no owner is found,” it would be an “unlikely event that the owner returns even after a search.”

Curtis: Today [under current law], you write down your original creative thought and it's copyrighted. That's it. No registration is needed for it to be copyrighted. Let's say that your creation is important to you and if someone were to infringe it, that you'd want to sue them to the greatest extent possible. If that's the case, the law allows for what's called "statutory damages" and those can amount up to $150,000 per infringement. To make statutory damages available to you, you have to register your work with the Copyright Office within three months of publication. If you don't, you cannot claim statutory damages.

Holland: I won’t respond to this. Mr. Curtis has already acknowledged that his facts are in error; and he’s corrected it in his response to comments on the Myartspace Blog.

Curtis: It should also be said that, today, if you want to enforce your copyright in a court, you must register your copyright with the Copyright Office before you do it. This does not apply to foreign copyright holders, however (that's a topic for another time).

Holland: This legislation would orphan foreign as well as US work. It would violate international copyright law and international treaties. It would let Americans infringe the work of overseas artists and let overseas infringers exploit the work of American artists – all protected by a law unique to the US. All this would invite retaliation by other countries against US markets.

On Thursday, June 5, ‘08 the European Union announced an orphan works regime that would let European libraries, museums and archives digitize their collections of true orphaned work. This would permit only non commercial usage of real orphans by authorized cultural institutions. If the United States really wants to do the right thing, we should work to harmonize our orphan works laws with what they’re doing there.

On June 20, ‘08 the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America submitted amendments to the House and Senate Judiciary Committees that would have done just that. If Public Knowledge wants a true orphan works bill, we invite them to support our amendments in the new Congress.

Curtis: Under orphan works [legislation], nothing with regards to registration changes. Period. You don't have to lift a finger for your work to be copyrighted, in the same way you don't today.

Holland: No argument. We’ve never said that people would lose their copyrights under this law. But by removing the penalties for orphan work infringements – and by redefining an orphan as any work by any artist that somebody can’t find – this bill opens the doors to widespread abuse. In effect you’d still have a copyright, but in many cases, it would be a copyright in name only.

Curtis: The talk about "visual registries" or "online databases" that you might have heard with orphan works, are all efforts to try to make it easier for artists to be found. When I said above that we've been listening to artists, we have. Artist (sic), especially visual artist (sic), have complained that a big reason why they cannot be found is because the Copyright Registry isn't very useful to them.

Holland: It’s become a mantra with Public Knowledge that artists have complained we can’t be found. This is simply not true. In fact, we’ve said the opposite. Here’s an example. I posted this on our CapWiz site May 3, ‘08:

I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

What if 1000 people can find me but one can’t? Why should that one person get a free pass to use my work? Won’t that give infringers an incentive not to find me? And why should I be obligated to go into court to prove anything about the diligence of the searcher or the value of my work?

I believe my work benefits the public by being published through the channels where I wish to publish it. The current copyright law works by giving me the incentive to keep doing this.

I can be located. My clients locate me all the time.” I don’t see how we could say it any more clearly.

Curtis: [Artists] don't register their works because it's very expensive and time consuming. It even costs a lot to register a change of address. Additionally, the Registry's online search only returns text results. So, if you're a visual artist, if someone searches the online registry for your work but doesn't know your name or textual information about the image, they have no way to compare that image they have in hand to any record in the registry--not a single record in the online registry displays a picture. To see a picture, the potential user would have to physically come to Washington, DC to search the records by hand, or pay someone to do it for them.

The registration of groups of images compounds the problem. Finding the image your (sic) looking for is hard enough, but with group registrations, even if you knew the artist, you'd have to sift through contact sheets of many small photos that can be submitted as a way to save on filing fees. This makes it even more difficult for a user to find the image that they're looking for, even if they have physical access to the registry.

So, hearing these problems, we suggested to the Copyright Office that their system needed an overhaul. It needed to allow for online registration, for online searches that produced images, and visual recognition technology to allow an orphan to be matched against images in the registry. The Copyright Office said it had neither the money or expertise for these updates.

If government was going to fail us, maybe the market would help to fill the gap. We suggested to policy makers that we should send up a flare to the online market that these services should exists (sic) to help owners and users. The Copyright Office could certify them, to make sure they met minimum quality standards.

Despite what you may have about orphan works, the use of these services would be entirely optional for copyright owners. Using these services as search tools for finding orphans would be required for users, though. We proposed these services as a way to improve the status quo--to help visual artists be found. If visual artists choose not to use the tools, it may be harder to find them--but the search must still be conducted, whether or not a "Google Search" returns the photo they're looking for.

As a point of clarification, it should be noted that using these services would not allow an artist to claim statutory damages in a court of law. We are suggesting that the Copyright Office allow more online services to access the Copyright Registry, to make it easier and cheaper for owners to "officially" submit their works. But we're not there yet.

Holland: This whole line of reasoning treats art as a closed book, as if the only challenge left is to create enough privately owned databases for users to find rightsholders. That may be the daydream of the people who own stockhouses, because it would cut them in on the profits from artists’ work. But it’s not the daydream of artists who want to create new work.

To understand this bill you have to go to its heart. It was drafted by the anti-copyright lobby. They’ve sold some Congressmen on the argument that culture’s being harmed because people can’t find authors. They want the bill to “pressure” artists to hand over our commercial inventory, metadata and licensing information to privately owned commercial databases. That means to comply, you’d have to digitize your entire life’s work and color correct and keyword the files, all at your own expense. They say that registration would be optional, but unregistered work would be exposed to orphan works infringement; so there’s your option.

Personally, I estimate that it would cost me a quarter million to comply with this bill. Some photographers have estimated a million dollars or more. And that’s not the cost of registration. That’s just the time, expense and labor of converting physical art to digital files.

Curtis: As I said above, nothing in orphan works requires any artists to spend any additional money to register their works--whether that be at the Copyright Registry or with some online service.

Holland: How does Mr. Curtis know what these commercial registries will or won’t charge artists? As commercial enterprises they’ll be in business to make money. Does anyone seriously believe they won’t tack on fees for “services” sooner or later, one way or another?

Curtis: [W]e would like to see solutions arise in the market to make it easier for owners to be found, and maybe even register their works more cheaply. Digital technology should make things cheaper and more useful.

Holland: The technology being developed is fantastic. But it should be used to help citizens protect their rights; not to make them subsidize the start-up businesses of untested search technologies and untried business models. This law would inevitably favor the aggregation of private property into large, privately-owned commercial databases.

Curtis: When I talk about these services, I think about sites like that allow anyone to upload as many images as they want for free. You get some added features as well as unlimited uploads for $25 a year, as compared to the cost of registering one of your works at the Copyright Registry: $35 per work. That's a huge cost difference, all because it's online and digital. Other services, like, search and index sites like Flickr and let you compare one image against the entire index. They do this for free.

Holland: How many “free” credit cards do you get in the mail every month? Free, until they start to pile on service charges, maintenance fees, penalties, commissions and other expenses. Once a couple of for-profit registries have access to your commercial inventory and client contact information, they won’t need anything else. They’ll be able to solicit your clients and invite them to clear the rights to your work through them. Artists who gave their work to stockhouses have already seen that business model in action. They don’t have to guess how it’s likely to play out here.

Curtis: Some of these services may charge a minimum fee for an account like Flickr's "pro account", or require payment for using the search function, or no charge for any of it. They may provide additional services, like ways to help owners license their works, or print their works, etc, to offset the costs of their "registries."

Holland: When the Copyright Office spawned the Orphan Works bill in 2006, the bill’s advocates said it would not cause problems for artists. They were wrong. Now they concede the problems, but say technology is the solution. Wrong again.

Take PicScout. It’s just one of the technologies being developed for locating visual art. On March 13, they testified before the House IP subcommittee. They made a pitch that sounded too good to be true – and was:

”Our technology can match images, or partial information of an image – such as a single face of one person in a crowd, with 99% success...Over the years, we have established relationships with our partners and now track the use of millions of digital files stored in our huge centralized database.“

PicScout is just one of several firms that hope to benefit from this legislation. They see future registries where registered pictures will not be available for review or browsing. Instead a searcher would feed in a desired image and if there’s a match, get back only the artist’s name and contact information – or be told there’s “no match.”

So far, so good – for all the pictures in the registry. But what happens when there’s “no match.” You can’t find work that’s not in the registry.

Let’s say you haven’t registered a particular image in the system. In that case, the best technology in the world won’t find it there. So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually make your work a potential orphan, even though it’s still copyrighted to you.

But let’s say you comply with this bill. You register tens – or hundreds - of thousands of your works with one or more commercial registries. Are these works now safe from infringement? No, they can still be orphaned. Here’s how:

It’s unlikely that PicScout or any other image recognition technology can ever operate on a mass scale with anything like 99% accuracy. But for the sake of discussion, let’s take even their best-case claim and analyze it.

PicScout’s boast of “99% success” concedes a margin of error of at least 1%. Sounds small, but consider:

* Google has already said they intend to use millions of orphaned works. Other businesses will use millions more.
* An error rate of 1% means 10,000 registered images will be “accidentally” orphaned every million searches.
* Multiply 10,000 accidental orphans by millions upon millions of searches and you have an astronomical number.
* These are images that will be orphaned even though the artists spent the time and money to register them.
* Will these artists be able to sue for infringement? Yes, but at their own risk, because
* The infringers’ use of the registries will indicate they did “reasonably diligent searches” to find the works there, and:
* There’s no way to be sure whose rights judges will forfeit in the case of registered works orphaned by computer errors.

And there’s another problem. It’s statistically impossible for a million searches to orphan the same 10,000 images each search. That means every image you register will be permanently vulnerable to an infinite number of orphaning opportunities. And that means that any image you register may turn up as a “match” in one registry — while being orphaned in another.

Have fun in court.

Curtis: Artists, established or struggling, would not be required to use any of these services under orphan works. Period. Nothing is required, and just because you don't upload your works does not mean a user's qualifying search ends when he can't find your image on Would it help the rest of us find you by uploading what you can to one of these services that already exist? Sure. It might even have the added benefit of giving you exposure and even get paid for your creativity. But nothing is required.

Holland: The key word here is “required.” You would not be “required” to register your work with these databases because compulsory registration would place the US in violation of international copyright law. So this bill wouldn’t force you to register your work, it would merely expose your work to infringement if you didn’t. For most of us, that’s just a matter of parsing words, but remember, we’re deep in Lawyerland here.

Curtis: I believe that orphan works policy promotes very sound copyright practices, and to that extent I believe all artists benefit.

Holland: Actually, this legislation is so complicated it won’t promote sound copyright practices to anybody unless they actually read the bill – all twenty-some pages of it - and keep a lawyer on retainer to explain their rights to them on a case-by-case basis.

Curtis: [Orphan works policy] requires users to search for owners to ask their permission to use a work. It requires users to negotiate in good faith and compensate an owner for the use of a work.

Holland: No, under this law, users wouldn’t have to negotiate or compensate an owner at all unless the owner found out he’d been infringed. And for that, the owner will have to depend on chance. On the other hand, current law does require negotiation and compensation, because you can’t use an owner’s property now without his knowledge.

Curtis: Additionally, [orphan works policy] encourages, without requiring, owners to make themselves more accessible and findable.

Holland: Or to put it in plain English, it creates the public’s right to use your copyrighted work as a default position, available to anyone whenever you fail to make yourself sufficiently “findable.” This is like passing a law to limit penalties for shoplifting on the grounds that it will “encourage” storekeepers not to let their goods lay around on open shelves.

Curtis: It signals to the market that the needs of many artists are not being met, and encourages innovators to fill the gap.

Holland: A false premise is not validated by repetition. Artists – who are not complaining that they can’t be found – do not “need” a bill that exposes them to more opportunists than we already have to deal with, no matter how “innovative” the opportunists may be.

Curtis: It [orphan works policy] encourages art societies to help their members develop best practices and help their constituents be found.

Holland: With all due respect to art societies, the only people I would trust to establish best practices are the people who conduct business in the real world. There’s a big difference between drawing up a list of dos and don’ts and negotiating with real clients under commercial pressures.

There’s nothing wrong with any organization trying to draw up professional guidelines. I’ve helped do that myself. I directed the team that drafted the best practices guidelines for the use of illustration published by the American Institute of Graphic Arts. But that doesn’t mean I’d bet the value of my life’s work on the likelihood that people will comply with the policies we spelled out.

No code of conduct has any more teeth than are written into statute law. And the whole point of this bill is to pull the teeth of the statute law pertaining to copyrights.

Curtis: And importantly, it [orphan works policy] goes out of its way to discourage outright infringement.

Holland: No it doesn’t; but the fear that somebody might sue you if you steal their work does discourage infringement – and that’s the current law.

Curtis: Some artists more heavily rely on the use of others' works in their own creative works. Just a few examples are: independent and documentary filmmakers, book authors, collage artists, parody and satirists, and DJs. The works of these artists are no more or less creative than the works they include or build from. Even though everyone has their own tastes, I don't think it's right to claim one kind or genre of art is more valuable than another--even if one follows from another. If you want to ensure your freedom of creativity to include another's work in your own, and are willing to search for the owner and compensate them for your use, orphan works policy should help you.

Holland: Here we go again. First, parodists and satirists already have a free hand to use orphaned or even known works. So do book authors who can quote from others' work - whether orphaned, anonymous or known. They have that right under the Fair Use provision of current copyright law.

Second: yes, the bill would help re-mix artists because they have to appropriate the work of others to create. But you don’t have to denigrate their work to assign it its true value. Collage may be a form of art, but not all art is a form of collage. This bill would jeopardize the work of all artists to benefit some members of a sub-class. And it won’t benefit professional artists at all, because we have to indemnify publishers that our work is original and not based on infringements.

To the extent that there’s a problem at all with orphaned work, that problem can be solved by a modest expansion of Fair Use. We’ve addressed that in the Amendments we proposed to Congress. Here’s that link again:

Curtis: Lastly, many artists' work are not appreciated until after they have passed, maybe society wasn't ready for their creative expression. What if someone discovered your work but could not share it because there was no one to ask permission? Not to get too existential here, but if you have a sense of legacy or even pride in your work, how might you feel if you passed away and no one ever saw your life's work and creativity? I think orphan works addresses this problem.

Holland: So as not to get too existential myself, let’s pick an obvious example: Van Gogh. Was there ever an artist more underappreciated in his lifetime or more lionized after his passing? And yet his reputation soared within the “restrictions” of the Berne Convention, with no orphan works exceptions.

But imagine instead if Van Gogh had had to waste endless hours of his short career digitizing every single drawing, painting and sketch, registering his metadata with multiple databases, filing out forms, monitoring the internet for infringements and dragging infringers into US courts to contest the diligence of their searches and proving the value of his work – which in his lifetime was zero. He’d have shot himself years earlier.

Curtis: I don't know if I've changed any minds with my responses today. But at least there is this dialogue. Unfortunately, with many of the groups [opposed to the bill], there is no dialogue.

Holland: Since apparently we don’t engage in dialogue, maybe I shouldn’t respond to that.

Curtis: Many of these groups have had a knee-jerk reaction from the beginning and have polarized their membership with fear.

Holland: No, we’ve told the truth about this bill and its backers have had to call it fear.

Curtis: They've created straw men for their memberships to rally against, when the truth is that those companies have had very little stake in this legislation (I wish they were more involved, but they're not).

Holland: Headline from Market Watch, Sept 29, 2008:

Web firms quietly win copyright victory in Congress

SAN FRANCISCO (MarketWatch) Sept 29 -- As the media turned its attention last weekend to battles on Capitol Hill over the fate of the proposed Wall Street bailout bill, Internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory that could facilitate their use of copyrighted material.

The Senate on Friday passed the Orphan Works Act of 2008, legislation that weakens copyright protection for works whose owners cannot be located. The legislation has now been referred to the House Judiciary Committee.

The legislation requires only that a company make a "reasonably diligent" search to locate a copyright owner before using their work in media including the Internet, and limits compensation required for the use of an infringed work.{E21206C0-98F5-459B-9506-8133CBD82859}&dist=hpts

Note that the headline did not say “Straw men win copyright victory for artists.”

Curtis: I believe the amount of effort put into building and rallying these groups' membership could have been refocused to actually help their membership, instead of scaring them into writing letters of opposition to Congress. It's really unfortunate, and may have even harmed those groups' credibility with members of Congress and their staff.

Holland: Speaking of trying to scare folks, we’ve heard this one from the beginning: Artists shouldn’t oppose the bill, even if it harms their careers, because writing to Congress might harm our credibility. Can anyone imagine saying that with a straight face to any other interest group in America?

Curtis: My group, Public Knowledge, has reached out to a number of artist organizations like photographers, graphic artists, comic illustrators, textile manufacturers, etc. in an effort to try to address their concerns. I've personally corresponded and talked to a number of concerned artists.

Holland: Over 82 groups came together to oppose this bill last year.

These groups represented artists, writers, photographers designers, songwriters, musicians, performers and countless small businesses.

I’m not sure what purpose it serves to keep portraying all these professionals as a fringe group motivated by irrational fears.

Curtis: Back in 2005, part of the problem for artists was the lack of visual searches at the Copyright Registration. We proposed remedies and actually got them included into 2008's legislation. To a certain extent, we believe that some groups have used that good will against us. But still we continue to try--and plan to push forward an effort to make the Copyright Registry more open and accessible to make it easier and cheaper for artists to protect their works and be found (if they so choose).

Holland: Throughout these comments, we’ve seen artists portrayed as feckless ingrates who first complained that we couldn’t be found, and then when groups like Public Knowledge worked to “meet our needs,” turned up our noses at their hard work and “good will.”

In fact, in 2005, there were no problems facing artists that this bill could solve. To the extent that we expressed any problems at all outside our field that year, it was the concern we noted over the actions of the Free Culture movement.

On March 24, ‘05 Cynthia Turner and I authored a submission to the Copyright Office’s Orphan Works Study. It was signed by 42 national and international art organizations and roughly 2,000 individual artists, including many of the top professionals from various fields. You can read it for yourself on the Copyright Office website:

In our summation, we boiled down our reasons for opposing this particular vision of copyright “reform.”

The “Free Culture” argument is at odds with the principle of tangible expression, which is the only aspect of the creative process protected by copyright law. By arguing that creative work is only a “remix” of the work of others, the critics of copyright ignore the factors of experience, personal development and individual vision that are embodied in any author’s tangible expression of an idea. The computer and internet, as well as Photoshop, stock and royalty-free content have all made it possible for many people to become content providers by “sampling” the work of others. But the demands of this “new modality” for free and easy access to usable work should not induce lawmakers to legislate as if creativity can be adequately defined by the “remix” model. There is a difference between the alchemy of new creation and the assembling of “found work.” Legal protections for this difference have been built up over centuries and once eroded, would be painful and costly to recover.

The internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist’s work now can be instantly transmitted around the world without the artist’s permission or control does not justify a user’s “right” to take the work. And if inability to trace a work to its author becomes the justification for creating such a “right,” who and what will define the inability to trace the work?

The “orphaned” works currently under consideration by the Copyright Office include the work of many artists now in the prime of their careers. To remove copyright protection from this work has the potential to undermine the important public policy behind copyright: To promote the creation and dissemination of culture by rewarding incentive. Rescinding guaranteed protection from copyrighted works will do more harm than good to the creative community and by extension, to the public good.

– Brad Holland 1.12.09

You can learn more about the opinions of IPA concerning orphan works by visiting their blog, For further information visit,

Take care, stay true,

Brian Sherwin
Senior Editor

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