'Orphaned Works' legislation faces pushback from artists

While two bills introduced in Congress last week have support from several groups representing the recording and Internet broadcasting industries, artists themselves are among its most vocal critics.

Two bills now making their way through the Senate and House, proposed by Sen. Patrick Leahy (D - Vt.) and Rep. Howard Berman (D - Calif.) aim to change copyright law to address the issue of whether individuals or companies have the right to use unclaimed art -- including musical backgrounds and visual or graphic art -- after a reasonable search for their originators turns up nothing.

"There is an important issue facing us as artists, related to the copyrights of our works, which corporations wish to control and take at our expense," interest group ConceptArt.org said in an call to action e-mail last Thursday. "We must put a stop to this immediately unless you wish to see others owning and plagiarizing your art."

The term orphaned works refers to works of art for which a copyright holder cannot be located. Since the US Copyright Office does not have a record of visual copyrights, oftentimes intellectual property rights for visual imagery are enforced by the rights holders themselves.

Then, when that rights holder passes on or fades into history, or the creator stops taking an active stance in enforcing his or her rights, the artwork then becomes "orphaned." While most will make a good attempt at finding copyright holders, sometimes they cannot be located.

So several questions emerge: Who speaks up on behalf of unprotected art? Who speaks on behalf of individuals or companies that make fair use of art that was never claimed before? And are more lawsuits to resolve those questions necessarily a bad thing?

While the two bills differ in some respects, both have the same general principle: After attempting in good faith to locate the creator or copyright holder, if none can be found, a party can incorporate the work into his or her art without having to fear an eventual lawsuit.

If a copyright holder cannot be found, it would prevent the original owner or his/her/its associates from asserting a copyright suit later on. If a copyright holder is found, the person would only be able to seek compensatory damages, and not the punitive damages that push monetary judgments sky high in many cases.

New artists would be able to use this law to their benefit as long as they file notice with the Copyright Office of what old works they are using.

Both legislative chambers began marking their respective bills last week, although it is not clear if either will come to a vote before the end of this legislative session. With the presidential election ever closer, typically the chamber slows down as many of its members focus on campaigning.

Some major copyright holders are applauding the bill as the first pro-user change to the country's copyright laws in nearly 20 years.

"The copyright laws should strive to connect owners and users, and allow for common sense solutions when that is not possible," RIAA chairman and CEO Mitch Bainwol said, saying the current law impedes the creation of new works that "could benefit the public."

Such action in the Congress is spurring other governments worldwide into action on the topic. The European Union is looking into similar changes to copyright law, and other countries are watching to see how things pan out here in the US.