Will A New Copyright Act Strip Artists Of Their Copyrights? And If So, Would It Really Be So Bad?

Several months ago, the Copyright Office put out a notice encouraging artists to write in and answer the following five questions:

  1. What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?
  2. What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?
  3. What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?
  4. What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic art works, and/or illustrations?
  5. What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act? 

The purpose of the questionnaire was to determine "how certain visual works...are monetized, enforced, and registered under the Copyright Act," in order to determine "the current marketplace for these visual works, as well as observations regarding the real or potential obstacles that these authors and, as applicable, their licensees or other representatives face when navigating the digital landscape."

Many artists believe that the responses will be used to draft a new Copyright Act (a law that hasn't been significantly updated in 40 years) and that the new Act will potentially harm artists' ownership interest in their own work. Allegedly, the heart of the new Copyright Act will be the return of orphan works registration, a concept so hated by artists, including renowned illustrator/ activist Brad Holland, that the energy generated from that hate could power a small black hole.

An "orphan work" is a work of art whose owner is not known and not findable, thus making licensing or purchasing of the rights impossible. The Copyright Office, considers orphan works a “widespread and significant” problem because “there is always the possibility that the copyright owner could emerge after the use has commenced and seek substantial infringement damages, an injunction, and/or attorneys’ fees.” This would result in a chilling effect because, "many [users] will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” According to the Office, the uncertainty caused by this problem undermines the entire copyright system. In order to sway Congress, the Office released a report last month listing the following recommendations to address the orphan works situation:

  1. Artists will be encouraged to register their works to avoid orphaning, thus decreasing monetary recovery if the work is infringed. All works - visual or otherwise, commercial or otherwise - would be registered, free of charge, with commercial or non-profit registries and not with the Copyright Office (which is the current practice);
  2. Users who want to use a copyrighted work would have to file a “notice of use” with the Copyright Office. The notice must contain a description of the work, a summary of the good faith diligent search they conducted to find the copyright owner, the source of the work, and a description of the how the work will be used. The goal is to facilitate communication between owners and users.
  3. In large part, the financial liability of someone who used the work would be limited as long as they made a good faith diligent attempt to find the owner. If they followed all the steps, they would not be liable.
  4. If a user did not make a good faith diligent attempt to find the owner, they would still be liable, but statutory damages would be a thing of the past, replaced instead with “reasonable compensation” for infringement;
  5. Certain non-profit institutions - such as public universities or hospitals - and certain types of uses - such as educational - would be granted a “safe harbor" to use the works without permission and without being liable for monetary damages.

I can understand why artists would be nervous about changes like these. And while I hate to dismiss their concerns (especially in light of the fact that similar legislation was introduced twice before being killed both times), I don’t think there’s much to worry about here.

For one thing, there’s no actual legislation yet, so it’s difficult to know exactly what changes any bill would propose. There’s no guarantee that Congress would implement the Office's recommendations, or that Congress even considers orphan works a problem worth fixing. And since this Republican Congress is particularly disdainful of federal agencies, who’s to say they’d listen at all? 

But even if these exact recommendations were implemented as proposed, I'm not convinced there would actually be any harm caused. The system would not, as some claim, strip artists of their copyrights, force them to register their works*, or allow infringement to continue unabated. The Office's recommendations seem to encourage artists to register their work so as to maximize financial gain, while at the same time making it easier to find infringers. It would also put users in a position where they could find the copyright owner of a work they want to use and facilitate communication between those parties. As far as I can tell, these recommendations would actually move copyright law closer to what the founders originally intended - as something to be enjoyed and used by the public at large.

Now certainly the law could fail if passed. They do all the time. But it's not clear to me at this stage that passing these recommendations would have a deleterious effect on the average artist. 

Maybe I’m wrong about this (it has been known to happen from time to time), but I don’t think I am. That said, if you have an opinion on the issue you think I haven’t considered, I’m happy to hear you out. Email me or write in the comments section below. 

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*Remember that even under the current system, you cannot file an infringement suit until and unless you register your work with the Copyright Office. So registration has always been a key to enforcing economic claims.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA