The proposed new law is a nightmare for artists
By The Art Newspaper. Comment, Issue 192, June 2008
Published online: 01 June 2008
US Congress is currently debating legislation which will remove the penalty for copyright infringement if the creator of a work, after a diligent search, cannot be located. Libraries and archives are among the groups lobbying for the change to allow copying of so-called “orphan works”. The legislation would allow a rights holder who subsequently emerges to be paid the normal fee, but removes the currently costly statutory damages which rights’ holders can charge.
The term “orphan work” is used to describe situations in which an infringer of copyright decides that he cannot locate the copyright holder—usually the artist in the case of paintings and drawings. In a radical departure from existing law, the US Copyright Office has proposed that Congress grant infringers freedom to ignore the rights of the copyright holder. The proposal goes far beyond current concepts of fair use, and, as explicitly acknowledged by the Register of Copyrights in a recent congressional hearing, it is not designed to deal with the special situations of non-profit museums, libraries and archives. Rather, it would give carte blanche to infringers even if they wished to exploit an artistic work for commercial advantage. Under the proposed legislation, if a copyright holder finds out about an infringement after the fact, his only remedy would be to bring a lawsuit in federal court where a judge could order the payment of what he determines would have been paid by “a reasonable willing buyer and reasonable willing seller” before the infringement took place. This is in sharp contrast to existing law where a copyright holder may obtain a halt to the infringement, the destruction of infringing copies, and damages that may be up to $150,000 for each work of art infringed. This would remove the deterrent that keeps piracy rates at a manageable level.
The Copyright Office presumes that the infringers it would let off the hook would be those who had made a “good faith, reasonably diligent” search for the copyright holder. Unfortunately, it is totally up to the infringer to decide if he has made a good faith search. Bad faith can be shown only if a rights holder finds out about the infringement and then goes to federal court to determine whether the infringer has failed to conduct an adequate search. Few artists can afford the costs of federal litigation: attorneys’ fees in our country vastly exceed the licencing fee for a typical painting or drawing.
The Copyright Office proposal would have a disproportionately negative, even catastrophic, impact on the ability of painters and illustrators to make a living from selling copies of their work. This is because—unlike books, songs and films—works of visual art lack universally accepted titles that permit searching by name. And, the number of works by most artists typically exceeds the output of novelists, composers or script writers. Furthermore, it is easy for an illustration, drawing or image of a painting to become separated from any publication in which it has been reproduced and which may have identified the artist, especially in the internet age.
The Copyright Office has stated that this problem will be addressed by private companies creating electronic registries of works of visual art. Using unproven technology, a copy of a work of art could be scanned digitally for comparison with the works on file with that company. There would be no limit on the number of such registries, and to protect himself effectively the artist would have to pay to digitise his work and to place it with all of them. The burden of this nightmarish bureaucracy would be overwhelming in expense and complexity for artists. I can speak from personal experience that anyone who has been painting or drawing for any length of time is likely to have thousands of works of art that he would have to pay to digitise and file with one of these companies. And, the Copyright Office has made it clear that failure to register a work with these private companies would automatically render it an orphan, available to be copied by infringers with impunity.
The Register of Copyrights acknowledged the expense and complexity of such a system when she told Congress that neither her office in the Library of Congress nor “any government agency could ever keep pace with the image technology that exists outside our doors and beyond our budget”. This is a remarkable admission from the leader of an agency that has been registering copyrights in artistic works for over 200 years and operates on a budget of over $300m.
Visual artists usually work alone. They receive no salaries, do their own marketing and have no administrative support. In short, it is a tough life. It is deeply troubling that government should be considering taking away their principal means of making ends meet—their copyrights. I can only hope that Congress will reject the Copyright Office’s ill-advised recommendations. n
The writer is an artist. This piece was written with Theodore Feder, president of the Artists Rights Society, based in New York
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