Orphan Works press release from the House/Senate Judiciary Committees
As promised, the press office of the Senate Judiciary Committee just sent me their release on the Shawn Bentley Orphan Works Act of 2008. (Thanks, y'all!) Below the cut, it's reproduced in full. The first section is a press release, i.e., the who (as in, who's sponsoring it), what (description of the bill), when (today), where (Washington, DC) and
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I've heard this argument raised from a number of different directions, and it's an important thing to take into consideration; it's one I'll be discussing in detail when I post my analysis of the House and Senate bills (after I've had a chance to read them, that is).
The main thing to remember here is that this is an existing problem for artists under the status quo of US copyright law. Under the current system, if LargeCompany, Inc. infringes J. Random Artist's copyright, J. Random is looking at a lengthy court battle during which he'll need to show a preponderance of evidence (which is a legal standard widely used in civil courts -- it's less than the "beyond a reasonable doubt" that criminal courts require) that the original work belongs to him (easy, if J. Random has registered the work with the Copyright Office) and that LargeCompany is using the work without J. Random's permission. Even so, J. Random can't recover statutory damages or attorney's fees unless he had already registered the work before litigation began; he can only recover actual damages. So unless you already register everything you create with the Copyright Office, you're going to be in a weaker position when filing infringement, simply because lawyers are expensive and a lawyer claiming infringement of an unregistered copyright can't say "oh, and make the defendant pay me if they lose."
Thus, when considering new legislation, we need to consider how the provisions being proposed will affect the status quo for artists. The grim meathook reality is that most artists don't register anything with the Copyright Office and are thus several steps behind when they come out of the gate if they have to sue someone for infringement. So the acid test of whether this bill proposes to help artists, hurt artists, or neither will depend on what changes it portends for infringement litigation.
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You can register a collection of every drawing/painting you've done that's never been published. They do not have to be related just organized and identified as a collection such as "RBFineart Unpublished work 2000-08". This will cost you $45, which is a much as registering a single piece of published art.
Its well worth doing.
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What Does Copyright Protect? Copyright in a work of the visual arts protects
those pictorial, graphic, or sculptural elements that, either alone or in combination,
represent an “original work of authorship.” The statute declares: “In no case
does copyright protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied
in such work.” (emphasis mine.)
If you create 30 works for an exhibition you can classify them as a a single original work of authorship., Likewise if you create 30 illustrations a children's book you can register them together as a single orginal work of authorship.
When I register my own work I include the finished piece plus sketches. I've had no objections from anyone at the copyright office for doing this. I also send out the registration before anything is published.
If you are going to sell an image it is well worth the $45 dollars to register it. It is a cost of doing business.
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