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Senate passes Orphan Works Act

I’ve received an e-mail from JP Trostle alerting me that the Senate has passed their version of the Orphan Works Act last night before the presidential debate. He opines that the timing of its passage was deliberate as the media and watchdog groups are distracted by the debates as well as the Wall Street economic aid package.

The Illustrators’ Partnership has sent out a call to all artists to write their House representative. In order to stop this bill from becoming law would be to stop the House Judiciary Committee from folding their bill (HR5889) and adopting the Senate version.

With lawmakers scrambling to raise 700 billion dollars to bail out businesses that are “too big to fail,” the Senate passed a bill that would force small copyright holders to subsidize big internet interests such as Google, which has already said it plans to use millions of the images this bill will orphan.

With the meltdown on Wall Street, this is no time for Congress to concentrate our nation’s copyright wealth in the hands of a few privately owned corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel creators to risk their own intellectual property to supply content to these corporate business models. That means it would be our assets at risk in the event of their failure or mismanagement.

As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.

–Brad Holland and Cynthia Turner, for the Illustrators’ Partnership

Visit their web site for more information and to get information on contacting your representative.

Community Comments

#1 Ted Rall
September/27/2008
@ 1:14 pm

One sign that Congress is trying to sneak a fast one is pushing through controversial legislation in the dead of night–while the media is distracted by a big story as is the case now, over a weekend when reporters have days off from work.

This appears to be the case with the Orphan Works Act. Not since the USA Patriot Act has a proposed law been more of a misnomer. The works in question are not actually “orphaned,” as in abandoned by their creators. In fact, any piece of intellectual property, including a cartoon, could be copied without permission or payment.

If the Orphan Works Act is signed into law, there would be no inducement to contact a cartoonist and pay for reprint rights. A book publisher could print the cartoon without permission. Odds are, the cartoonist would never hear about it, and that would be that.

In the unlikely event that the artist DID find out, he or she could contact the publisher and demand to be paid. All the publisher would have to do to avoid the usual penalties against copyright infringement would be to claim that it has conducted a search of one or more data archives and not been able to find the cartoon. Then it would pay the cartoonist a standard, low-ball reprint fee.

The cartoonist would not be compensated for his or her time and energy, or legal expenses, if any. The publisher would not be punished–indeed, would be incented–to reprint work illegally.

If the Orphan Works Act passes, it won’t be long before copyright is eliminated altogether–along with the ability of cartoonists to earn income for their work.

#2 Abell Smith
September/27/2008
@ 2:15 pm

Is there any advocacy group that would be willing to pursue a court challenge to such legislation, should it be enacted?

#3 Ted Rall
September/27/2008
@ 3:06 pm

Unfortunately, I don’t see how even a well-funded court challenge could be successful. Congress is fully within its rights to alter or even eliminate copyright protections. Copyright is a regulatory, not a Constitutional, matter.

If the Act passes and is signed into law, the only way to get rid of it would be to have it repealed by Congress. It’s hard to imagine that happening.

What artists need to understand is that there are powerful corporate interests lined up behind the Orphan Rights bill, including Google and Microsoft. The next step will be to abolish copyright–you know, because information “wants to be free.” Or, more accurately, Google and Microsoft want information to be free to them, so they can aggregate and package it and sell it back to us.

Anything short of serious hell-raising is not going to work. In fact, it may already be too late to stop this train wreck.

#4 Mike Cope
September/27/2008
@ 4:03 pm

Well, this makes me 2 for 2 (so far) with my predictions of the future …

http://lastofthefunnies.com

Now, please excuse me while I consult my crystal ball on the US and Canada elections :)

#5 Daryl Cagle
September/27/2008
@ 4:08 pm

Ted, if this goes through, as it looks like it will, it would be very helpful if the AAEC would consult with an attorney to put together a set of practical guidelines for how cartoonists should conduct their business differently, under the new laws.

#6 Mike Peterson
September/27/2008
@ 6:08 pm

Okay, let me paint a target on my butt and stick a “kick me” sign on my back …

As I read the proposed law, it requires a potential user of a found work to seek the holder of rights to that piece of work with due diligence. (I realize that’s a fluid concept, but it’s not one without some meaning.)

If the person seeking to use the work cannot find the owner, he is required to identify the piece as “orphaned.” If the owner then surfaces, he is entitled to the same compensation as if he had been approached in the first place.

Now, I can certainly see the difficulty in “unringing the bell” if the owner simply doesn’t want the work used in that context — let’s say it’s a book that promotes gambling and the picture was originally intended to criticize gambling in a religious context.

But what I’m hearing from artists is a concern about compensation. Now, if the argument is that the artist would have insisted on substantially more compensation than the court later determines is fair, I understand — except for this:

Can someone give me an example of how a work that would prove to be of such value that “fair compensation” didn’t cover things could become orphaned to the extent that a diligent search did not turn up the copyright holder?

I’m not trying to start a fight. I honestly don’t understand, and all I’ve heard is rhetoric. What might be some solid examples of realistic situations that could arise under this law that would work substantial damage to the artist?

#7 Barry Deutsch
September/27/2008
@ 9:41 pm

I think there’s a lot of misinformation about this bill on this thread, and a lot of needless panic. I’ll concentrate on replying to my friend Ted (hi, Ted!).

In fact, any piece of intellectual property, including a cartoon, could be copied without permission or payment.

This is true right now. But if you mean that this bill would make doing so legal, then you’re mistaken.

Publishers would have the exact same inducement to pay cartoonists that they do right now; fear of getting sued.

All the publisher would have to do to avoid the usual penalties against copyright infringement would be to claim that it has conducted a search of one or more data archives and not been able to find the cartoon.

As I understand it, the legislation requires a thorough good-faith search — which is defined, to some extent, in the legislation. And it’s a courtroom, not a publisher, which will determine if the search was sufficient and in good faith.

Also, the cost of defending yourself from a lawsuit is much, MUCH higher than the cost of an illustrator’s fee, even if the illustrator is Charles Burns. It would be cheaper for legitimate publishers to operate in good faith than to blatantly steal our cartoons.

Of course, fly by night publishers will steal our cartoons — but they’re already doing so now. This legislation won’t change that.

Finally, contrary to your claims, the legislation (which you can read at the bottom of this page) doesn’t call for “a standard, low-ball reprint fee.” If the artist and infringer can’t negotiate a price, the court imposes one based on the court’s understanding of fair market value, after listening to both side’s arguments.

Copyright is a regulatory, not a Constitutional, matter.

Article I, Section 8 of the Constitution requires that there be some sort of copyright law. But it’s true that the details are up to Congress.

I want this bill to pass. Orphaned works are a real problem; passing this bill would be a real service to historians, to museums, to college professors, and to those of us who are fans of old cartoons.

Some more links on this issue: 1 2 3 4.

#8 Wiley Miller
September/28/2008
@ 7:21 am

“If the owner then surfaces, he is entitled to the same compensation as if he had been approached in the first place.”

To me, this is sort of like winning a case in small claims court. Winning doesn’t always mean you’re going to collect what’s owed you.

#9 Ted Rall
September/28/2008
@ 7:46 am

Thanks, Daryl. That’s a good suggestion, and one that shouldn’t wait until the next AAEC convention, which will be held July 1-4 in Seattle.

Mike wrote:

Now, I can certainly see the difficulty in â??unringing the bellâ? if the owner simply doesnâ??t want the work used in that context â?? letâ??s say itâ??s a book that promotes gambling and the picture was originally intended to criticize gambling in a religious context.
But what Iâ??m hearing from artists is a concern about compensation. Now, if the argument is that the artist would have insisted on substantially more compensation than the court later determines is fair, I understand

Compensation is an important issue. If someone wants to use one of my cartoons, I should have the right to demand as much as I want as payment, and they should have the right to accept or reject my proposed price. The proposed law would reduce every payment to some arbitrary “average” price, with the long-term effect of driving down prices.

Also, the severe penalties against copyright infringement are a highly effective deterrent. Many people decide that it’s easier to ask for permission than risk getting nailed.

But there’s more to it than thatâ?¦

Can someone give me an example of how a work that would prove to be of such value that â??fair compensationâ? didnâ??t cover things could become orphaned to the extent that a diligent search did not turn up the copyright holder?
Iâ??m not trying to start a fight. I honestly donâ??t understand, and all Iâ??ve heard is rhetoric. What might be some solid examples of realistic situations that could arise under this law that would work substantial damage to the artist? ?

Here’s one: On occasion neo-Nazi sites have used my cartoons without permission, altering my words to fit their hateful agenda. I understand that they do this to many cartoonists. Worst of all, they leave my signature on them, leaving the impression that I endorse fascist or anti-Semitic political views. In such a case, is “fair compensation” really fair?

Here’s another: I once caught a college paper using my cartoons for years, week after week, without permission. Under the Orphan Works Act, all I’d be entitled to is back reprint fees. Under current law, however, I was able to nail them to the wall. When I first contacted them about this, the editor literally told me what Dick Cheney says sometimes, and hung up on me.

Anyway, I threatened to sue them, have their back issues pulped, and charge them three times the reprint fees, not to mention my attorneys fees. (Of course, I didnâ??t want to do any of those things. I just wanted what I was owed.) The editor caved in, not only paying the back reprint fees but also agreeing to buy my cartoons (at the regular rate) from then on. Copyright gave me leverage. Orphan Works would take it away.

#10 Ted Rall
September/28/2008
@ 7:56 am

Barry wrote:

As I understand it, the legislation requires a thorough good-faith search â?? which is defined, to some extent, in the legislation. And itâ??s a courtroom, not a publisher, which will determine if the search was sufficient and in good faith.

No, it won’t. Because cartoonists won’t go to court. Because if they do, even if they win, they won’t be able to recover their attorney’s fees. It’s hard to imagine a case where even modest legal fees–wouldn’t exceed whatever usage fees are in question. In New York, for example, it costs at least $5000 just to file a lawsuit. And there’s no guarantee that you’ll ever get your day in court.

Of course, fly by night publishers will steal our cartoons â?? but theyâ??re already doing so now. This legislation wonâ??t change that.

Yes, it will. Because it eliminates the penalties for doing so. If caught, all they have to do is say, “Oopsâ??my bad. I’ll pay you the industry average reprint fee.”

Finally, contrary to your claims, the legislation (which you can read at the bottom of this page) doesnâ??t call for â??a standard, low-ball reprint fee.â? If the artist and infringer canâ??t negotiate a price, the court imposes one based on the courtâ??s understanding of fair market value, after listening to both sideâ??s arguments.

I repeat: cartoonists will end up not going to court. The power that is currently in the hands of a copyright holderâ??pay up or I’ll sue youâ??will vanish with the provision that you can’t recover triple damages, attorney’s fees, or have the reprinted material impounded (as is the case under copyright law).

I want this bill to pass. Orphaned works are a real problem; passing this bill would be a real service to historians, to museums, to college professors, and to those of us who are fans of old cartoons.

There is absolutely nothing wrong with the current system. It should not be a creator’s responsibility to track down those who use his or work illegally. It should be a would-be user’s responsibility to track down the creator or his heirs.

If this law passes, there will be little incentive to create new cartoons today for fans of old cartoons to enjoy tomorrow.

#11 Scott Lincoln
September/28/2008
@ 8:12 am

What Article 1, Section 8 has to say is this: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”…

The key words to me there are “securing… exclusive rights”, ie. their job is to secure our rights NOT eliminate them.

No matter how you look at it, the (so called) “Orphaned Works” Bill fundamentally changes copyright law from “Innocent until proven guilty” to “guilty until proven innocent”. I as an artist have to PROVE I created a work, rather than it being granted upon creation and presumed to be owned by me.

Plus doesn’t the fact that only a few “catalog” companies control verification (and not with out further cost) violate anti-trust laws? This whole “hot-lining thing wreaks of backroom dirty dealing. I think we should know who is voting on this and who is taking money and from whom.

From the time of comics inception in this country up until the last quarter, cartoonists have fought to get control of their own work, now we are letting all their hard work go right down the drain. It’s just a crying shame.

P.S.: There is little threat of getting sued if the only threat comes from people who can’t afford lawyers.

#12 Wiley Miller
September/28/2008
@ 9:20 am

This bill reminds me of the deregulation movement by the right wing. They want to “fix” something that has been working just fine for a long time.

I have yet to hear one good argument for the bill or why it’s needed.

#13 Ted Rall
September/28/2008
@ 9:34 am

I can conceive of a good reason for such a bill.

You find a cartoon, but you don’t know who drew it or when it was drawn. You’d like to include it in a book, but you don’t know if has fallen into public domain because enough time has passed since its creator’s death. Rather than take a chance of violating copyright, you don’t use it–representing a cultural loss.

It is a legitimate issue, and a problem for researchers, but the cure creates problems that are far worse. If the cost of making material available to researchers and publishers is screwing over creative people who are struggling to get paid today, it’s just not worth it.

#14 Wiley Miller
September/28/2008
@ 10:09 am

“It is a legitimate issue, and a problem for researchers, but the cure creates problems that are far worse.”

That’s pretty much my point of “fixing” something that’s not broken. It’s throwing the baby out with the bath water, which, to me, still doesn’t provide any good reason in favor of the bill. I seriously doubt that the concern of those who put forth this thing was to help researchers. I think it’s just another corporate grab, wanting to get something for nothing.

#15 Daryl Cagle
September/28/2008
@ 10:34 am

A large part of our business is â??copyright clearancesâ? â?? that is, we get contacted by people whose job it is to chase down rights to copyrighted material; these are usually freelancers or small businesses who are in the business of doing this all the time. They are clueless. They ask us for permission to reprint cartoons by everybody we donâ??t represent, by cartoonists Iâ??ve never heard of or canâ??t identify. When we respond to tell them who a cartoonist is and that they should call somewhere else for permission, they forget and repeat the same mistake again. These are people who look at a cartoon and can discern no difference between one cartoonistâ??s work and anotherâ??s. Signatures in cartoons are meaningless to them. They clearly spend a whole lot of hours repeating this procedure with different cartoon licensors.

It is clear to me that publishers are already spending much more than the typical reprint fees chasing down permissions. If I was a publisher, and I saw that my liability for printing a cartoon without permission was to pay what I would have paid anyway if I had gotten permission, my response would be to cut out the cost of all those people chasing down permissions.

I would get legal advice on how many databases to consult to constitute a good-faith search, document that those searches came up with no results (I wonâ??t really want results, because not finding the cartoon in a database and printing it anyway will be cheaper than spending more time on the matter), and reprint whatever I want, without the cost of permissions researchers.

#16 Barry Deutsch
September/28/2008
@ 11:06 am

Wiley wrote:

I seriously doubt that the concern of those who put forth this thing was to help researchers. I think itâ??s just another corporate grab, wanting to get something for nothing.

This is a reform that academics concerned with history have been advocating for many years. Believe it or not, people can disagree with you in good faith.

Scott wrote:

The key words to me there are â??securingâ?¦ exclusive rightsâ?, ie. their job is to secure our rights NOT eliminate them.

You don’t get to acknowledge only the bits of the constitution you like. Those are key words, but no more so than “To promote the progress of science and useful arts….” Orphaned works are a real problem, and contrary to the purpose of copyright.

Now on to the discussion of the law itself — which is hard, because you clearly have no idea what this law does, or even what the current law is.

No matter how you look at it, the (so called) â??Orphaned Worksâ? Bill fundamentally changes copyright law from â??Innocent until proven guiltyâ? to â??guilty until proven innocentâ?.

Actually, it’s the reverse. Right now, our system — even for museums and archivists acting in good faith — makes people “guilty until proven innocent”; if this law passes, a new affirmative defense will be created, bringing us closer to “innocent until proven guilty.” (Although really, this entire line of thought is inapplicable, because we’re talking about torts, not criminal law).

I as an artist have to PROVE I created a work,…

This is true, but it’s true regardless of whether or not this law is passed, and it’s an irrelevant point as far as this law goes.

Right now, without this law, if I steal your work and you sue me, you can’t win your lawsuit without proving that you created the work. And that’s the way it should be. Do you really want a system in which anyone can be declared the legal owner of a work just by saying they are, without having to prove it? Talk about giving people a license to steal!

….rather than it being granted upon creation and presumed to be owned by me.

I’m never sure how to respond when someone says something so completely, utterly false. It’s not a matter of opinion — you’re wrong, and you plainly have no idea what this legislation says or does.

Please read the legislation and QUOTE for me the specific place where it takes away my right to be granted copyright upon creation and presumed to be owned by me.

You can’t, because it says no such thing. The automatic grant of copyright would not be touched by this legislation in any way at all. Period.

#17 Wiley Miller
September/28/2008
@ 11:15 am

“This is a reform that academics concerned with history have been advocating for many years”

Yet I still haven’t heard a good reason why it’s needed, considering the terrible downside of this bill. And, knowing politics as I do and how things work in Congress, I seriously doubt that the academic world is putting up the big lobbying bucks that it takes to pass such a bill. For that, you look directly at who benefits from this financially. And that’s not the academic world, it’s the publishing world.

Does this make me a cynic? Perhaps. But I prefer to think of it as being a realist. As the old saying goes in Washington, follow the money.

#18 Randy Glasbergen
September/28/2008
@ 12:27 pm

If these changes are being made by politicians in the USA, how does any of this affect copyright holders in other countries? I was under the impression that copyright law was a matter of international cooperation. If this passes and becomes law, would we all be better off living in Canada?

#19 Ted Rall
September/28/2008
@ 1:00 pm

Indeed, Wiley is right: follow the money. The lobbyists for this legislation were paid by Google and Microsoft. I think it’s pretty obvious why they’d want to erode copyright protections.

Abell, you have not addressed the point that several of us here have made: most cartoonists can’t afford lawyers. Under the Orphan Rights Act, we would have to seek our remedies in court–at our own expense, even if we won a case.

That’s a big change from now.

#20 Mike Cope
September/28/2008
@ 1:19 pm

Randy raises an excellent point regarding a copyright holder’s citizenship. The virtual world has no visible borders.

Example …

1) A non-US cartoonist’s cartoon is displayed on a website, blog, or Facebook page (etc.). For arguments sake, there is only a scribbled signature on the cartoon and no other proof of ownership.

2) An American finds the cartoon and searches the proposed “works databases” as part of their good-faith search.

3) The non-US cartoonist has not registered this cartoon with the databases, and so, the work is deemed “orphaned.”

4) The American proceeds with “legally” publishing the cartoon.

#21 Mike Peterson
September/28/2008
@ 1:39 pm

Here’s the Copyright Office’s explanation of the act:
http://www.copyright.gov/orphan/

The example of someone taking a Ted Rall cartoon and using it without permission is not part of this law, unless they can prove that they examined the cartoon carefully and were unable to see the signature in the corner, or that they saw the signature but then did an exhaustive search and were unable to find any evidence of a cartoonist named “Ted Rall” (a simple Google search yields 329,000 hits) — oh, and that they didn’t notice the copyright notice next to his name or the name of the distributor in the margin. And that they published it with the “orphan works” designation to show that they were unable to find copyright.

Unlikely. What Ted describes is blatant theft, under the current law, under the new law. There is nothing in the new law that would shelter them under those circumstances. There is nothing that would change the size of the cartoon anvil Ted could drop on their heads — or the cost of the lawyers he could employ to drop it, or his chances of recovering his costs.

Now, consider the person writing a book about the Underground Railroad who decides to include the lyrics to “Follow the Drinking Gourd.” It’s an old folk song, right?

Well, it depends. There’s some evidence that it’s not, but it’s awfully muddy, and, unfortunately, the date attached is 1928, which means it’s possible that somebody could emerge and claim to be the descendant and legal heir of H.B. Jones, the folklorist who first published it.

Granted, this isn’t the best example, because Jones himself claimed it was a folk song. And it’s possible that, even if it’s fake, he wasn’t the writer.

But that’s the sort of situation the new law is supposed to cover: The writer could use the song, mark it as an “orphan” and then, when ol’ HB’s grandson appeared, he wouldn’t be liable for the kinds of additional damages that those guys who steal Ted’s cartoons would potentially face. He’d simply have to pay what would normally be paid for the work, either by agreement with the copyright holder or, failing agreement, by the court.

I still don’t see how any work created in the last half century could fall under this law except, for instance, an unsigned illustration that was created for a copyrighted Bicentennial publication to look like an 18th century engraving, then was copied by someone who did not acknowledge the source and is then discovered in turn by a publisher who assumes it is a true 18th century piece. My sense is that a big-scale publisher would put a lot of effort into making sure and the little guy who didn’t probably wouldn’t be making Harry Potter-sized profits on the venture anyway.

So, where am I wrong?

#22 Mike Peterson
September/28/2008
@ 1:54 pm

Addendum: According to that copyright office site, an example is material from the Holocaust. For instance, a diary found at one of the camps, or letters from the period where it is difficult to tell who wrote it or whether they have any living heirs. I could suggest that, on a cartoon level, nose art from WWII planes could fall under this example. If your late father’s nose art appeared on the cover of a book about WWII bombers, you might want to assert some rights, yes. This would allow them to use the work and allow you to get paid.

It still isn’t what is being discussed here — work done with commercial intent.

#23 anne hambrock
September/28/2008
@ 2:53 pm

The fear I am sensing here is along the lines of what has happened in the music industry with sampling and mash-ups where pre-existing recordings are lifted and altered willy nilly.
Every once in a while one hears of a famous case where the original artist takes the perpetrater to court and intellectual property rights and claims of plagerism swirl around and there is much debate. Sometimes the original artist wins and sometimes they don’t.

Every time I hear mash-ups I get mad because I am a composer and if anyone took my stuff and essentially made a “collage” with it outside of my control and without thought to copyright or compensation, I would be furious. When interviewed these guys all simply respond “everybody does it” as if the music is all in the public domain when clearly it is not.

I would like to know where the syndicates stand in all of this. It would seem they have a lot of money invested in protecting the intellectual property of their artists. Ted says cartoonist can’t afford to take people to court but syndicates can. Would they consider this enough of a threat to take legal action?

#24 JP Trostle
September/28/2008
@ 3:11 pm

Since I’ve been helping to spread the word against this bill, let me just jump in here and highlight what the big concern is for working artists.

If the Orphan Works Act becomes law, several corporations plan to start for-profit databases to keep track of all images in the US. Checking any of these corporate-owned databases will, under the new law, constitute a search of “due diligence.” Since the databases will theoretically contain all visual references, companies will not be required to search beyond this — for instance, bothering Daryl with phone calls.

Therefore all artists MUST submit all of their work to EACH of the databases out there (for a nominal fee, of course) if they hope to be covered under the new law. If you don’t buy into the new setup, your works will be considered orphaned.

(Furthermore, these databases will not be based on text but on pattern recognition software, similar to what is used in face recognition programs. One of the corporations looking to set up a database brags that its software is 99% effective. Even if that is true, it means that for every million searches, the software will accidentally “orphan” 10,000 pieces. Doesn’t matter that you paid, you still get screwed.)

Finally if you do find someone (or some company) stealing your artwork, you can’t sue them for damages if they say they used one of the databases to try and find your work. Using it absolves them of not doing “due diligence.”

If you still think this is a good idea, just imagine that these “database firms” will be similar to the three credit bureaus (and, btw, there could be more than 3 database firms). If you’ve ever dealt with TransUnion or tried to correct an incorrect credit report on Equifax, then you know how fracked up *that* system is.

Now multiply it by all the artwork you’ve ever created.

#25 JP Trostle
September/28/2008
@ 3:23 pm

>If these changes are being made by politicians in the USA, how does any of this affect copyright holders in other countries? I was under the impression that copyright law was a matter of international cooperation.

It is — and passage of this law will cause the U.S. to break with international law. (So what else is new these days?).

International copyright law forbids the creation of paid databases because it forces artists to buy into a system, and places an undue burden on the individual and small business.

So not only does this bill create a larger problem for creators here, but it mucks up things abroad

#26 frank white
September/28/2008
@ 3:46 pm

Under this law would well known syndicated comic strip cartoonists whose work and characters would be already well known still have to copyright their work with these database companies? Surely the amount of fame these famous cartoonists have is enough to ensure them protection as everybody would know it’s their work. Also for lesser known cartoonists,say those who produce a daily comic strip or cartoon , would they have to copyright every single comic strip every day? Or is just making sure they have copyrighted the characters they use and a few basic sample strips enough for proof? The daily cost of copyrighting a comic strip every day would surley be probhibitive to both syndicates and cartoonists to those features with less than a hundred newspapers. I would welcome any thoughts on this with keen interest.

#27 Daryl Cagle
September/28/2008
@ 4:29 pm

Do we know how these database businesses would be certified, with regard to meeting the threshold for providing legal protection? For example, could the AAEC site apply to be certified? Cartoonbank? Corbis?

#28 Mike Cope
September/28/2008
@ 5:06 pm

For Frank White:

Being famous, that is, drawing famous cartoon characters would certainly make it easier for one to validate their copyright ownerships.

But consider the number of gag and editorial cartoonists who do not use the same characters every day. Each one of their cartoons essentially stand alone, so it would seem that each and every cartoon they create would need to be registered.

And this is precisely why this bill could spell the end of many young (or lesser known) cartoonists’ careers. It will cost them more to register their work than they actually earn from said work.

#29 Mike Peterson
September/28/2008
@ 5:38 pm

Sorry, JP, I just can’t find the portion of the text that says searching one database will constitute a diligent search, or that part that requires artists to register their work in any particular database.

In fact, my reading of the text is quite the opposite. I am not a lawyer, but as a journalist I’ve spent a fair amount of time over a fair number of years poring over this sort of stuff, and what I’m seeing is that the infringer will have to meet an extraordinarily high standard to claim due diligence and that the artist will have to do nothing different than is required today.

Show me the part you’re talking about. I can’t find it. Here’s the text: http://tinyurl.com/4xqlsq

(Shortcut: Do a text search for the phrase “Requirements for Searches.” But it’s all pretty interesting and not all that impenetrable.)

#30 JP Trostle
September/28/2008
@ 11:12 pm

Apologies — in rereading my post I see that sentence wasn’t entirely clear, and maybe a bit oversimplified. However, it doesn’t change my point.

There is nothing in the proposed law that says they have to use more than one database, or all of them. (And how many are there going to be? One? Three? Ten? I can’t answer Daryl’s question about certification or thresholds because nobody knows — it isn’t addressed in the legislation.)

What I mean is, say Google does a search on PicScout (one of the real companies hoping to benefit from the Orphan Works Act) … but you’ve registered all your artwork with another firm, say Brand Ecch (or whatever they’re called before they get bought out by Microsoft). Google could still argue they looked on one of the accepted databases and couldn’t anything — it’s not their fault you didn’t didn’t register there. But so what.

The point is, it’s the very existence of the registries that’s the problem. International copyright laws (which we’re part of unless this thing passes) prohibit registries because of the undo burden it places on individuals and small businesses.

You’re right — this bill doesn’t specifically state that artists must register with a database; the market will do that, with increased pressure to sign your stuff up or risk having it declared ‘orphaned.’

#31 Mike Peterson
September/29/2008
@ 2:28 am

I’ll grant you that it does make registering somewhere a smart act, but, if you publish works without a signature or copyright notice, that’s a smart act anyway. But it is very clear that a diligent search, at a minimum, includes both Copyright Office records, a search of reasonably available sources of copyright authorship and ownership, use of available technologies, publications and licensor information, expert assistance and “use of appropriate databases, including databases that are available to the public through the Internet.”

I can already think of a couple of cartoonbanks that are searchable by topic, etc. This suggests two things to me (well, three if you count “sign your work”): (1) Set up a workable cooperative database and use appropriate tags so that artists’ work can be searched for. (2) Contact the Copyright Office and make sure your concerns are on record as they establish their benchmarks for a reasonable search — which, according to their own statement, they will be able to update as problems surface.

After looking into this further, I can see it as a potential problem for commercial photographers, since their work may appear in advertisements or on brochures without attribution. If the picture is then lifted by a blogger and becomes widespread, it could be hard for a potential user to track down its origin. However, and to say it again, if, after a diligent search, the new user does not mark it as an “orphaned work,” they give up their rights to claim such use and would be in the same position as any infringer.

In any case, I’ll spare everyone the additional bandwidth and let it go with these points: First, read the law itself carefully before you decide the threat level. Second, sign your work. Third, if you are concerned about this rather limited exception to existing rules, make it a habit of registering your work with the Copyright Office as people did in the Olden Days before copyright became automatic. And, finally, keep your professional associations active in communicating their concerns to the Copyright Office so that the requirements of a diligent search are updated to reflect changing technologies.

#32 Ted Rall
September/29/2008
@ 8:03 am

Signing your work doesn’t always help.

The New York Times Week In Review section, for example, has the odd practice of deleting cartoonists’ signatures before running them in the paper.

It isn’t hard to imagine a researcher finding a cartoon clipped out of the NYT, sans signature, and being unable to determine who drew it.

#33 JP Trostle
September/29/2008
@ 10:10 am

Mike, while I disagree with you, I will say you are doing an excellent job as devil’s advocate. :)

>Second, sign your work.

To reinforce what Ted said, allow me to reference the recent Newsweek screw-up where they misidentified a Rob Rogers cartoon as drawn by “Signe Wilkinson” and vice-versa. This error could have been easily caught, except Newsweek always photoshops out all signatures and identifying marks from the cartoons it reruns.

#34 Mike Peterson
September/29/2008
@ 10:47 am

“The New York Times Week In Review section, for example, has the odd practice of deleting cartoonistsâ?? signatures before running them in the paper.”

“Newsweek always photoshops out all signatures and identifying marks from the cartoons it reruns.”

Well, now, see, THERE’S your problem right there, fellers …

#35 Beth Cravens
September/29/2008
@ 1:09 pm

Thanks all for the info. I can see I’m going to have to take this matter a little more seriously than I had been. I always keep my originals and make sure that they are signed, but I see that signing isn’t as permanent as I thought.
Is there a low budget solution?

#36 Mike Lester
September/29/2008
@ 3:31 pm

Buttonholed and talked to my Rep. Phil Gingry nose to nose recently and told him I’d shoot him if he supported O.Works Bill. I was immediately arrested.

Ted, the AAEC should be “in their face”. I’ll help in any way possible because, as you know, nothing gets my juices flowing more than seeing libs like J.P., Wiley, Cagle and Ted fighting for free market capitalism.

#37 Ted Rall
September/29/2008
@ 5:14 pm

I agree, Mike. Speaking of which, the AAEC is declaring Wednesday to be a day during which cartoonists and their allies should blog about (hopefully against) the Orphan Works Act and encourage their readers to contact their Congressperson about it.

#38 Mike rhode
September/29/2008
@ 6:22 pm

Speaking as someone on the other side of this issue (ie an archivist), the Mickey Mouse extension made American copyright law so ridiculously long that currently anything produced before the Great Depression is copyrighted. And it gets worse with the life of the artist plus 75 years. If that had been the case when the Bono act was passed, the Spanish-American War would still by under copyright! I’m sympathetic to people who make a living by intellectual property, but when does the public good come in. (BTW, copyright is mentioned in the Constitution – “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” but the Supreme Court ruled that *limited* doesn’t actually mean anything.

#39 Mike Peterson
September/30/2008
@ 3:56 pm

“the Mickey Mouse extension made American copyright law so ridiculously long that currently anything produced before the Great Depression is copyrighted.”

Exactimundo. I have edited and repackaged some 19th century children’s stories and poetry, including some terrific illustrations by HJ Ford and Charles Robinson, but I don’t touch anything created after 1923 unless I can find a clear indication of copyright — which is to say, for contemporary material, I either use government stuff like WPA photos and posters, I get permission, or I commission original art.

This is why I don’t feel this law is a big deal — any honest, competent archivist or anthologist or compiler is going to understand the situation and tread very, very, very, very cautiously in using any post-1923 material. The others are thieves and morons and will not jump through the necessary hoops to have their inappropriate use covered under the Orphan Works Act. They will not be protected and nothing at all will have changed in your ability to hang them by the heels and beat them with a baseball bat for stealing your material.

Read the act. You’d have to be an idiot to think you could steal material and be protected by this (proposed) law.

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