Tuesday, May 20, 2008

Reframing the Arguments on the Orphan Artworks Bill

I've been waiting for all of the (mis)information fluttering about regarding the so-called "Orphan Artworks Bill" winding through Congress to settle somewhat before ringing in. I know there are efforts to stop it before it becomes law, and while I understand the wisdom of preventing something fundamentally cumbersome and/or harmful from taking root, I also like to have a better understanding of something before I join in the effort to derail it. Someone somewhere must think this Bill solves a problem. Lawrence Lessig, a law professor at Stanford, summarized the reason Congress is tinkering with the law here, in his Opinion piece in today's New York Times:
Before 1978, copyright was an opt-in system, granting protection only to those who registered and renewed their copyright, and only if they marked their creative work with the famous ©. But three decades ago, Congress created an opt-out system. Copyright protection is now automatic, and it extends for almost a century, whether the author wants or needs it or even knows that his work is regulated by federal law.

The old system filtered copyright protection to those works that needed it; the new system regulates indiscriminately. The Congressional Research Service has estimated that just 2 percent of copyrighted works that are 55 to 75 years old retain any commercial value. Yet the system maintains no registry of copyright owners nor of entities from which permission to use a copyrighted work can be sought. The consequence has been that an extraordinary chunk of culture gets mired in unnecessary copyright regulation. [emphasis mine]

OK, so the main reason I've been hesitant to post about this before is I'm somewhat unconvinced by the stated rationales in the efforts to stop it. What I'm still awaiting is clarity on how this all applies to the visual arts and (because I understand the bold part of the text above) and what a more compelling argument would be for Congress to go back and work harder on it. My overall understanding is that this law is meant not for artworks for which the copyright is easy to ascertain and or apply (i.e., not for famous works) but for those for whom it's unclear...the non-famous orphans. Perhaps the visual arts portion of this can be as easy as submitting a jpeg to a registry for any work an artist doesn't intend to rework in the future, more or less as easily as one updates a website. It's still not clear, but I'm not sure it makes sense to simply expect the worst here as much as it does to focus on making it better. I've seen email campaigns to stop the law with claims that it will "create chaos for the artists community and a field day for everyone else to use your images anyway they wish." Many artists, to be quite blunt about it, should be so lucky. And approaching the issue from this point of view will not be very convincing I suspect. What I think makes sense to focus on here, rather than wild claims that there are greedy exploiters out there just chomping at the bit to make money off struggling artists' labor, is more clarity all the way around. As Lessing noted:
But precisely what must be done by either the “infringer” or the copyright owner seeking to avoid infringement is not specified upfront.
Also, by focusing on the elements of the bill that Lessing notes are clearly unfair, a more compelling argument can be made than those I've read which rely on imagining all kinds of dubious scenarios with highly personal implications (insert image of sinister copyright infringer twirling long mustache). The legislation in its current form seems unfair because :
[S]ince 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.
Again, the cut-and-paste letters I've seen on some websites seem more designed to appeal to the vanity of targeted artists than the problems in the proposed legislation, suggesting (as is one of my pet peeves in such matters) that the effort is more aimed at gaining attention for those circulating the emails, than actually solving the bill's weaknesses. Telling Congress, who has mostly likely never heard of you, that this law will discourage you from continuing to make your artwork (again, which they haven't seen), probably isn't as compelling to them as it might seem to you it should be. Donn Zaretsky has been chronicling the rational objections to the legislation in terms more likely to convince your Congresscritter to reconsider, as well as helping to dispel some of the myths taking on urban legend status at this point, such as:
"One point of disagreement concerns whether the bill would require artists to register their work with commercial databases to get copyright protection .... Holland has used this point to argue against the bill in several articles. The APA used similar language in a five-page position paper published Tuesday: 'All works, professional or personal, published or unpublished, will have to be registered with as-yet-to-be-created private, commercial registries.' No such requirement appears in either bill currently before Congress, and Perlman and PACA attorney Nancy Wolff say the statement is untrue. Both versions of the amendment mandate the creation of private databases of copyrighted works to facilitate the search for rights owners, but registration would not be mandatory for all creative works."
Of course, it doesn't make any sense to wait until a bad bill is law to act here, but unconvincing arguments are probably worse than no arguments at all and there are way too many unconvincing arguments in the form letters I'm seeing circulated. Reframing the argument with two goals--more clarity is needed before the bill becomes law, and more fairness must be incorporated--seems the best use of energy here to me.

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18 Comments:

Blogger Mark said...

This is indeed one of the more confusing bills, it seems like positives on both sides. Help Joy!

5/20/2008 10:14:00 AM  
Blogger Chris Rywalt said...

My experience on the Web has been that the more draconian and insane the copyright holder is about their images -- JPEGs of artwork or art photographs -- the lousier the work. Show me a site with watermarked images, disabled right-clicking, no directory browsing enabled, and big bold blinking text about reserved copyrights, and I'll show you crap you'll wish had never sullied your Firefox cache.

It always seems to me that originality is the best copyright protection. I myself -- this is outside the area of actual art, but -- always place my Web stuff into the public domain, partly because it's worthless anyhow, but mostly because the Web has given me so much free stuff (and even occasional paying work) I feel I should give back.

So I really think this Orphan Artworks foofawraw is a bit much. The creativity allowed by such a framework would, I think, outweigh whatever "chilling effect" there might be. (I'm thinking specifically of cases where a movie can't be released on DVD because the rights holders of incidental music or stock footage can't be located, or sometimes even determined. But I'm sure there are plenty others.)

Such a bill, with its flaws ironed out, would be a good thing, I think.

5/20/2008 10:20:00 AM  
Blogger joy said...

hi Ed,
I'm glad you brought this up, as it seems to be a divisive issue in the arts community, while it throws into relief how heterogeneous the "art industry" really is. While copyright has been key for certain kinds of artists to earn a living by licensing their work (illustrators, commercial artists + photographers, photojournalists, etc.), as an earning factor it is fairly irrelevant for gallery artists. That's because copyright is about mass production, which is why digital reproducibility and the web has thrown a wrench into the old system, making it very easy for anyone to copy and paste just about anything and circulate it widely.

My biases about "infringement" naturally stem from my own personal lack of dependency on copyright, and my own concern about the extreme extension of copyright locking up our culture, making it impossible for us to reference and build upon existing works, while creating a lot of work for lawyers (a concern which was informed btw by Lessig).

However, for illustrators and photographers, the concern is real. On the other hand, so is their hysteria, which I think clouds the issues much of the time. I tried to post something on the Orphan Works bills on newsgrist a while back that would untangle some of this stuff, but in truth I probably only made it more confusing... It is quite convoluted, the whole thing. My own tendency is to support opening up the box as much as possible, but Lessig obviously believes that no such thing will happen as a result of this bill. He is probably right, but where does this leave us? Probably the best thing Congress could do would be to repeal the Copyright Term Extension Act (aka the Sonny Bono Act or the "Micky Mouse Protection Act"). But that isn't the direction things seem to be taking, not in our lifetime...

5/20/2008 10:57:00 AM  
Blogger Kate said...

Here is an example of a galley artist who is facing a copyright issue:
http://youthoughtwewouldntnotice.com/blog3/?p=984

There are actually international companies who publish exhaustively detailed images from artwork in galleries and museums to distribute to extremely high-end clients as "idea stimulators". So you can see a portion of your painting mass produced on $5,000 dresses when you haven't even sold the original.

5/20/2008 03:01:00 PM  
Blogger Kate said...

"gallery artist"

5/20/2008 03:02:00 PM  
Blogger Joanne Mattera said...

Kate,
Thanks for the link to Jen Stark's dilemma. That's frightening.

Two thoughts for us all:
1) Volunteer Lawyers for the Arts. We'll need them more than ever. I certainly hope Jen has contacted them.

2) LO/VE

5/20/2008 03:32:00 PM  
Blogger joy said...

the banana republic's use of jen stark's ideas might actually be an excellent example of fair use/ transformative use: bottom line, does it reduce the value of her work in her market (the art market?)? no. And is this really what "gallery artists" want to do, design clothing store windows/license their work to banana republic? I think not. because if they did then why not go into window design. once again: you can't copyright an idea, only its expression (someone asks the question in the comments on jen stark's blog but no one actually ventures forth to answer it, as it's meant to be rhetorical). I think this banana window story is another example of wrong-headed artist's "author anxiety." It reminds me of the Jack Pierson flap a few years back, when he accused window designer Simon Doonan of ripping him off. Such hypocrisy, since artists rip things all the time, but the minute a, say, commercial enterprise rips them in turn they get all high and mighty. *sigh*.

In 1930 Woody Guthrie asked that the following be printed below his published songs:

"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

5/20/2008 03:52:00 PM  
Anonymous haydn said...

hmmm - as a writer whose copyright is routinely abused by the standard bearers for integrity - the broadsheet press - I set up a petition against the bill a few days back - it is over at mediangler.com . Truth is big, morally asertive organisations will not rest until they can do as they please.

5/20/2008 03:59:00 PM  
Anonymous Anonymous said...

I agree with Joy about the "Mickey Mouse Protection Act"... That has caused a lot of the mess this bill seems to be trying to redress [if awkwardly.]

5/20/2008 04:19:00 PM  
Blogger cralbert said...

Hi Ed,
After receiving the forwarded "Congress starves orhaned puppies in corner during vote to pilfer your intellectual property" call to action email, I intended to investigate it further - knowing I never would.
Thanks for doing the footwork for me and putting it a bit in context.

I tend to agree with Chris on this issue regarding those creators who doth protest too much.

5/20/2008 05:26:00 PM  
Blogger Chris Rywalt said...

I don't want to say there are no issues here. Artists do get ripped off, or anyway people attempt to rip them off. There was one guy who had copied an artist's site completely, only changing her name (to another female, false, name) and offered to sell artwork. Whether he was successful or not, I don't know (I suspect not).

I forget the artist's name. She's around the blogs. She's probably reading this. Remind me if you can!

Anyway, there are some genuine copyright issues. So I don't want to dismiss concerns about this new bill. But I do want to say that the mountain was once just a molehill, or anyway a small rise.

5/20/2008 05:42:00 PM  
Blogger Kate said...

And I know there are lots of people who go overboard in the copyright issues surrounding their own work. But there is something so perverse about the prospect of the high-payed "talent" of huge corporations lifting things outright from an individual artist.

Many artists (myself included) left commercial art or chose not to participate in the first place because we did not want to be a part of it, even though it meant we might be paid decent money for our creative ideas. (And myself, well, I could never get excited about fonts...).

(cue violin) We chose the higher and tougher road, the one that doesn't pay so well, for the freedom to execute our ideas without restrictions, making work for the greater good, or at least for our own good. Then our ideas get co-opted anyway, to sell some product we don't believe in, only we don't get the credit for the idea OR the money.

Because most people have given up long ago on trying to hold corporations accountable.

5/20/2008 08:23:00 PM  
Anonymous Anonymous said...

i recommend susan bielstein's "permissions, a survival guide, blunt talk about art as intellectual property"... good info for the layperson.

no, i am not susan bielstein.

5/20/2008 10:59:00 PM  
Blogger kalm james said...

Ed,
Thanks for your clarification, umm obfuscation, uhh explanation. I knew you’d be the right miner to dig in and find the essence of what this all means. I’ve received several pleas through my channel to somehow bring greater exposure to this issue and, like you, found much of this to be totally confusing.

As someone who’s confronted daily with people wanting to control my “use” of their material, this is interesting. Unfortunately, in this case, I’m afraid that we’ve go legislators trying to control a technology whose implications and potentials few people really comprehend. What I do understand is that this will be most beneficial to those who stand to make the most money from it (probably the companies doing the registries).

5/21/2008 10:04:00 AM  
Blogger Walter Dufresne said...

One big confusion is now clear: the "arts community" referred to by the most vehement objectors (who clearly see all the loopholes, and then some, in current legislation) is the community of commercial artists who license reproduction rights to their works. This arts community is distinct from the community of 'fine' artists who attempt to create unique or small-edition artifacts.

5/21/2008 06:06:00 PM  
Anonymous Anonymous said...

#
My family doesn't eat publicity. by Lloyd Shugart on Jun 3rd, 2008 @ 10:05am

http://community.nytimes.com/article/comments/2008/05/20/opinion/20lessig.html?s=2&pg=1 May 20th, 2008 5:30 pm Link I am a photographer who has worked for over 40 years. To a large extent, my retirement and estate will consist of the value of my copyrighted archives. The current proposals for the resolution of the "Orphan Works" problem will no doubt destroy much of the value of my work, since images can so easily be taken off the Internet, stripped of identification and distributed. This has happened to me. One image, which came to be important in the 2004 presidential campaign had been taken in 1970. It was stripped of copyright information and published over 400 times on the web. It was intentionally "orphaned". Many infringers did not even strip the copyright, they published it without permission or a license and claimed I shouldn't complain. "It is free publicity." My family doesn't eat publicity. The bill is a disaster for all intellectual property workers. If the government can list sex offenders and campaign contributors on the Internet, they should be able to manage copyright. — Leif Skoogfors, Philadelphia, PA Recommend Recommended by 9 Readers

(reply to this comment) (link to this comment)
#
It was a lonely search. by Lloyd Shugart on Jun 3rd, 2008 @ 10:56am

http://www.jpost.com/servlet/Satellite?cid=1202742156853&pagename=JPost%2FJPArticle%2FShowFull

According to Marilyn Henry, author of Confronting the Perpetrators: A History of the Claims Conference, the process of reclaiming looted art has always been one of the most prickly of all Holocaust restitution issues.

"Countless Nazi victims spent decades trying to find artworks that once belonged to their families. It was a lonely search. The burden was on the victim to find what had been taken, to prove it belonged to him and to convince whoever had it to give it back," she says from her home in New York.

"Imagine looking for a needle in a haystack, finding the needle, and being told by the haystack owner that you had to prove you owned the needle before the war, and then convince him that he should return the needle to you."

(reply to this comment) (link to this comment)

6/03/2008 02:47:00 PM  
Blogger Balhatain said...

I just finished an interview with Alex Curtis from www.publicknowledge.org concerning this bill.

Link below.

http://www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html

8/14/2008 08:16:00 PM  
Blogger Balhatain said...

If you are interested in this topic you might enjoy the words of Brad Holland. He responds to Alex Curtis of Public Knowledge on the Myartspace Blog.

http://www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

1/13/2009 07:12:00 PM  

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