The Orphan Works Act of 2008

[Mike Cope]

I understand Toon Talk's Politics Forum was closed for good reasons, but hopefully we can have a well-rounded discussion here about something political that directly relates to and can potentially affect us as cartoonists: The Orphan Works Act of 2008.

Thanks to a fellow Wisenheimer member, the following snippet from the Illustrators' Partnership Orphan Works Blog was brought to my attention:

US Copyright Register Marybeth Peters told Intellectual Property Watch that orphan works legislation is expected to be introduced within the next 10 days. It is her understanding there may still be some issues in the House version to be resolved, and there are some stakeholders - such as illustrators and other artists - "who are probably going to lobby pretty hard against it."

Being a Canadian, I feel a little guarded in this situation because we're talking about a potential law "south of the border." If passed, I have no doubt that its repercussions will be felt here (and elsewhere around the globe) simply because the Internet doesn't have borders easily identified on a map.

At the same time, I've felt a little powerless because there's no reason for US politicians to listen to a Canadian cartoonist's concerns about the act. Still, it's an issue that I'm having a difficult time ignoring.

Please excuse this shameless plug, but The Orphan Works Act of 2008 was an inspiration for a significant part of the story I tell in The Last of the Funnies. Set in the year 2076, my main characters discuss (among other things cartooning related) the issues of copyrights in a world where everything is a digital simulation and cartoons are created not by hand, but via cerebral implants that tap directly into a cartoonist's mind (i.e., imagination).

I know, I know ... Schmience Sphinxshun!

That's what I was thinking back in 2007 when I wrote the line: "After a worldwide energy and economic crisis ..."

I'm no Nostradamus, but some say a Soothsayer :)

[Mike Peterson]

The main problem I had with the Orphans Works Act was that it was being attacked by people who apparently hadn't read it, or who at least weren't convinced that courts would enforce the parts that protected them against simple snatching of copyrighted material. Admittedly, I don't know what the first draft looked like, but by the time it came down to a vote, there was a tremendous burden placed on the user to fully research the works being utilized and a good deal of remedy available if that failed.

I would expect artists' groups to lobby in favor of their constituency, but, in this particular case, they seemed to be going off on something that bore no resemblence to the actual proposed legislation, and they seemed unwilling to go back and read the law itself instead of their own comments about what they thought the law said. It was not a very productive conversation.

[Mike Cope]

What do you think of the idea of having to register your cartoons with commercial databases? From what I've read, it seemed like the "tremendous burden" you mention was more like the user hiring a private investigator. The user would submit the cartoon they'd like to use to one (or more) of these companies, and essentially pay for them to do a search of their own database. Of course, if you haven't registered your work with them, a search result would identify it as a potential orphan work.

Unless all of these databases were going to allow artists (or rightful copyright owners) to register their work for free, the whole process would introduce a tremendous financial burden that currently doesn't exist for copyright owners.

[Mike Peterson]

Not really. To begin with, it's assumed that anything produced since 1923 is copyrighted. In order to use it, you have to come up with a solid reason why you think it's in the public domain, or, at the very best, not a commercial piece.

Example: Photos and posters produced during the Depression might well fall under public domain. Or maybe not. If they were produced for the Government, you're home free. Otherwise, you need to be cautious. So a picture of people in a breadline presents problems. But you know that, so you figure it out. You'd have to be an idiot to think that a newspaper photo was in the public domain, but maybe it was taken by a government agency. Well, it is or it isn't. You're a jackass if you assume you can use it.

But here's this poster, and you don't know if it was produced by a government agency or a private concern. And it's well within the 1923 rule. Well, damn.

If you can't find the source, you either use it and take the risk of someone saying "My grandfather created that illustration!" or you give up a wonderful illustration of the point you are trying to make. Under the proposed law, you use it, and if someone comes forward, you pay them what it is worth.

Pretty scary stuff, don't you think?