Creators and the Orphaned Works Act

A couple of months ago, the Illustrators’ Partnership created a bit of a sensation in the art world when they released an interview between one of their members and the general counsel of the Copyright Office regarding a new version of the Orphaned Works Act that was set to recirculate through Congress in May. IPA (and others) interpreted this interview to say that Congress was legalizing a way for those wanting to use a piece of art to get that piece labeled an Orphaned Work (a work whose creator is not available to release the copyright) so they can use it for whatever means, regardless of whether or not the artwork in question was actually orphaned.

If you look through the IPA website, you find that they’ve had a long history with the Orphaned Works Act, often debating the Act’s merits and weaknesses when it appears in Congress. So they have quite a bit invested emotionally in this topic. This isn’t necessarily a bad thing. Orphaned creations are a nightmare on so many levels because of the copyright issues.

However, it appears that while registering might become an encouraged option, it does appear Congress is working to make sure orphaned works remain accessible or viewable while at the same time being sensitive to the current copyright laws. Of course, not everyone is convinced. Those in the nonprofit sector (museums, libraries, and public television) are also concerned because they’re often the ones trying to deal with the curation of orphaned works. If a work is deemed “orphaned” and the original copyright holder turns up later, the institution is in trouble.

What can we do? Well, for starters, we can educate people about copyright, both from the creator’s point of view and the audience’s point of view. Doug Johnson offered a great two-part series on copyright not too long ago that’s probably one of the better places to start. Teaching young creators to get into the habit of signing their work, tagging their work with contact information, doing something to make sure interested parties can find them, will save them headaches down the road regardless of how this Act shakes out.

We can also watch our own behaviors. If you’re a creator, make sure you yourself have tagged your work with your contact information. Create an artist’s mark to mark your visual work if you need to. Be vain. Sign everything. If you want to offer your work to be used by others, use a Creative Commons license to make it clear which rights you’re willing to give up. If you’re a consumer, respect the rights of the creator. It’s one thing to appreciate someone’s work, to imitate their style while you work on developing your own; it’s another thing entirely to just steal or copy without attributing that work to the original artist.

With diligence and education, it’s possible to minimize the number of works caught in this Act.


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