Advocacy

CAA’s advocacy efforts this year addressed a wide range of issues of critical importance to the visual arts, from the necessity of artists to have affordable health-insurance options, to the ethical treatment of animals in works of art, to the ins and outs of copyright law and museum practices. Below is a summary of eleven issues to which CAA has been committed during the past twelve months.

In June 2011, CAA filed an amicus brief in the case of Golan v. Holder, which the United States Supreme Court began hearing in October. The issue raised in Golan v. Holder is whether Congress, after enacting the Uruguay Round Agreements Act of 1994, could legally remove tens of thousands—if not millions—of foreign works from the public domain and bring them back into copyright. Consistent with the First Amendment, the brief argued that those works should remain freely available. On January 18, 2012, the Supreme Court affirmed a lower court’s previous decision, 6–2. In short, foreign works formerly in the public domain in the US can have their copyrighted status reinstated.

In December 2011, CAA signed onto a statement from the Association of Art Museum Directors that opposed the pending sale of a fifty percent stake in the Alfred Stieglitz Collection of Modern American and European Art at Fisk University in Nashville, Tennessee. Since 2005 the school had been attempting to sell the collection, donated by Georgia O’Keeffe (who specified that it never be sold or broken up). “Such an action,” stated the letter, “would violate a core professional standard of AAMD and of the museum field, which prohibit[s] the use of funds from the sale of works of art for purposes other than building an institution’s collection.” Nevertheless, the Tennessee Supreme court did not block the sale to Crystal Bridges Museum of American Art in Bentonville, Arkansas, on April 25, 2012. The university and museum will share the collection on a three-year rotating basis, with the museum helping to conserve the collection.

CAA board and staff members represented the organization at two events this spring in Washington, DC: Anne Collins Goodyear, then-incoming board president, and Linda Downs, CAA executive director and chief executive officer, attended Humanities Advocacy Day in March; and Judith Thorpe, an outgoing board member, and Helen Bayer, CAA marketing and communications associate, went to Arts Advocacy Day in April. The goal of both days was to support continued federal funding through the National Endowment for the Humanities and the National Endowment for the Arts, and to articulate to Congress the vital importance of the humanities and the arts in higher education. The National Humanities Alliance’s annual meeting coincided with Humanities Advocacy Day. Goodyear and Downs have offered a summary of this important event.

At the request of People for the Ethical Treatment of Animals (PETA), CAA investigated the use of homing pigeons in Jon Rubin’s interactive artwork, Thinking about Flying (2012), on view this year at the Museum of Contemporary Art in Denver, Colorado. The piece invites museum visitors to take home a bird, placed in a cardboard box, for a day before releasing it, so that it may fly back to the museum. CAA confirmed the humanitarian treatment of the birds by the artist and museum and notified PETA of the findings.

In April, CAA investigated the complaint raised by several artists who lent work to the 2010 World Festival of Black Artists and Cultures in Senegal that was not returned due to a dispute with an art shipper in Dakar. CAA determined that the situation did not need the organization’s assistance.

Michael Fahlund, CAA deputy director, testified on behalf of the organization at an oversight hearing convened by New York City’s Committee on Cultural Affairs, Libraries, and International Intergroup Relations on January 25, 2012, regarding increasing access to affordable health insurance for artists. Even though CAA is an international organization, its office is in the state of New York; presently the healthcare industry is regulated state by state. Fahlund proposed that CAA be given “employer status” in relation to its members living in New York State in order to provide health-insurance options for them. The committee’s discussions are ongoing.

CAA monitored a federal bill, the Research Works Act (H.R. 3699), that was introduced in the US House of Representatives on December 16, 2011, by Rep. Darrell Issa (R-CA) and cosponsored by Rep. Carolyn Maloney (D-NY)— chairman and member, respectively, of the House Committee on Oversight and Government Reform. The legislation would prohibit federal agencies from mandating free access to scholarly articles submitted to a scientific or scholarly publication without the consent of the publisher. This act primarily addresses science and technology publications but, if enacted, could affect art and humanities publications as well. Many learned societies who are publishers oppose the legislation, and CAA board members have begun discussing the issue and are paying close attention to the legislation’s development.

Representing CAA, Fahlund contributed his expertise to a National Coalition Against Censorship committee that developed Museum Best Practices for Managing Controversy, published in May. The document offers guidance for institutions to turn controversial situations into learning experiences for their public. The committee comprised representatives from the American Association of Museums, the Association of Art Museum Directors, the Association of Art Museum Curators, Columbia University, Arizona State University, the University of Washington, and the New School. CAA’s Museum Committee is reviewing the guideline and will present it for adoption at the CAA board meeting on October 28, 2012.

Fahlund also worked with a liability insurance broker, Herbert L. Jamison and Co. LLC, and Philadelphia Insurance Companies, and with two CAA members, Barbara Buhler Lynes and Nancy Mowll Mathews, to establish comprehensive, affordable liability insurance for art historians and artists who authenticate works of art. Such insurance would help defend against a damaging financial loss that could occur from alleged mistakes or negligence. CAA does not administer the insurance but acts as a referral to the insurance company; in a brief article from this past January, Fahlund offers helpful loss-prevention tips for the art professional to avoid potential workplace liabilities.

Last month CAA signed onto a letter from the Association of Art Museum Directors sent to Congress, urging legislators to pass the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 2212), a proposed law that would shield a loaned work of art from a non-US collection from being seized by anyone with a claim to legal ownership while the art is on display in the country. According to the letter, the US has “long provided the crucial legal protection that helps make loans from foreign museums possible” through the Department of State, until a 2004–8 lawsuit involving heirs of Kasimir Malevich and the City of Amsterdam weakened those protections. The House passed the bill (H.R. 4086), which the Senate is now debating.

As a member of the Coalition on the Academic Workforce, a group that addresses workforce issues in higher education, CAA helped to prepare and administer a 2010 survey on contingent-faculty issues. The results have been tabulated and will be distributed soon. More than one thousand CAA members filled out the survey. [June 20 update: the survey results have been published.]

Founded as an advocate for the visual arts in higher education, CAA actively engages matters of public policy, litigation, and activism at the local, state, federal, and international levels. For further information, visit the Advocacy section of the website. If you have questions or have advocacy issues you would like to bring to the attention of the CAA board, please contact Anne Collins Goodyear, CAA president, and Linda Downs, CAA executive director and chief executive officer, at info@collegeart.org.

With the eighth round of the Trans-Pacific Partnership Agreement taking place this month in Chicago, experts in intellectual property and information policy from around the world have released a Washington Declaration on Intellectual Property and the Public Interest that challenges the dominant direction of the negotiations on intellectual property in the United States’ trade agreements. Those in support of the declaration can express support with an online signature.

The declaration was created through a consultative process with over 180 experts from thirty-five countries in six continents at the Global Congress on Intellectual Property and the Public Interest, which took place August 25–27, 2011, at the Washington College of Law at American University. Citing an “unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders” through recent trade agreements, the experts call for new efforts to “re-articulate the public interest dimension in intellectual property law and policy.”

Read more about the Trans-Pacific Partnership Agreement in the Chicago Tribune and at Intellectual Property Watch.

This week CAA filed an amicus brief in the case of Golan v. Holder, which the United States Supreme Court will likely hear later this year. The issue raised in Golan v. Holder is if Congress could, consistent with the First Amendment, remove certain foreign works from the public domain and bring them back into copyright when it enacted the Uruguay Round Agreements Act (URAA) of 1994. A lower court, the US Court of Appeals for the Tenth Circuit, held that the URAA was constitutional. When the Supreme Court agreed to hear the case, Jeffrey P. Cunard, CAA’s counsel, was asked if CAA would join several like-minded organizations and individuals in signing onto a brief that would support the importance of the public domain. The Executive Committee of the CAA Board of Directors considered the importance of the public domain (works no longer in copyright) as a wellspring of resources for artists, scholars, and other creators while discussing the detrimental effect of removing works from the public domain. The committee also noted that a filing by CAA in Golan v. Holder would be consistent with the organization’s filing of an amicus brief in the Supreme Court case of Eldred v. Ashcroft. In that 2003 decision, the court determined that Congress did not violate the First Amendment when it extended the term of copyright through the Sonny Bono Copyright Term Extension Act of 1998. After reviewing drafts of the current brief, the Executive Committee authorized the filing of the Golan v. Holder brief on June 20, 2011. To learn more about Golan v. Holder and the issues at stake, please review the following articles, published online in March and April 2011:

• Lyle Denniston, “A Major Test of Copyright Power,” SCOTUSblog, March 7, 2011
• Edward Lee, “Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain,” Huffington Post, March 9, 2011
• Shannon Mo, “Cert. Granted in Golan v. Holder,” Re:Marks, April 1, 2011

The principal author of the brief, Jennifer Urban of the Samuelson Law, Technology, and Public Policy Clinic at the University of California’s School of Law in Berkeley, received assistance from Cunard and his firm, Debevoise & Plimpton LLP. Others signing onto the brief include individual writers, musicians, and scholars as well as other organizations. Cunard extends his thanks to Anne Collins Goodyear, curator at the National Portrait Gallery and CAA vice president for Annual Conference, for providing the excellent example of a visual artist, Marcel Duchamp, using a public-domain work, the Mona Lisa, to create a new one (pp. 14–15). The brief also cites other artists, from Pablo Picasso and Jasper Johns to Banksy and Shepard Fairey. In addition, Cunard has noted the extensive reference to CAA’s involvement in the orphan-works proceeding (pp. 33–35), which helps the brief support the proposition that the URAA’s copyright restoration of many foreign works had exacerbated the orphan-works problem. CAA’s involvement in Golan v. Holder is the latest event in its long history of advocacy efforts regarding freedom of speech and copyright issues. On behalf of all CAA members, the board is grateful to Cunard, one of the nation’s leading experts in copyright law, for the work he has put into the brief and for his continued support of the organization.

CAA is the principal national and international voice of the academic and professional community in the visual arts; the organization was founded on the principle of advocating the visual arts and actively continues that engagement today (see The Eye, The Hand, The Mind: 100 Years of the College Art Association, edited by Susan Ball). The principal goal of CAA advocacy is to address issues of critical importance in the visual arts that benefit artists, art historians, and museum workers and to inform the public.

CAA specifically advocates change and improvements in these areas:

• Government funding for the arts and humanities
• Freedom of expression and against censorship
• Intellectual-property rights
• Preservation of the artistic integrity of public spaces
• Higher education and technologies to facilitate distance learning
• Philanthropy for the arts and humanities
• Tax policy as it applies to CAA members
• Conditions in universities, museums, and other workplace environments of CAA members

CAA cosponsors and regularly sends representatives to the annual Arts, Humanities, and Museum Advocacy Days in Washington, DC. Email petitions are requested of CAA members throughout the year when legislation is being considered in Congress related to specific issues. This year’s advocacy message to Capitol Hill focused on maintaining the funding levels of the National Endowment for the Arts and the National Endowment for the Humanities.

Recent issues related to freedom of expression and censorship on which CAA has taken a public position include:

• Incarceration of the Chinese artist Ai Weiwei
• Removal of David Wojnarowicz’s video from the Hide/Seek exhibition at the National Portrait Gallery
• Proposed removal of the John T. Biggers mural at Texas Southern University
• Removal of the Department of Labor mural in Augusta, Maine
• Adrian Piper’s placement on the Transportation Security Administration Watch List
• Supreme Court amicus brief in support of petition for review regarding artists whose vehicular artwork was removed by the City of San Marcos, Texas
• Supreme Court amicus brief asserting the unconstitutionality of a federal law criminalizing the depiction of animal cruelty in United States v. Stevens

In addition, CAA has been involved in intellectual-property rights, as described below.

Orphan Works

CAA participated actively in US Copyright Office proceedings to study orphan works and, thereafter, actively supported legislation—yet to be passed by Congress—that would require users to conduct work-by-work, due-diligence searches to identify and find the copyright holder. If that search failed to identify or find the copyright holder, the work could be used without the threat of injunctive relief or statutory damages. If the copyright holder emerges after the work has been researched and used, he or she could still sue the user for copyright infringement, but a losing defendant would only be required to pay the normal license fee; the proposed legislation includes a safe harbor for museums that removed works expeditiously. It is unclear if any orphan-works legislation will be reintroduced in this or subsequent Congresses. After the March 2011 decision of Judge Denny Chin of the US Court of Appeals Second Circuit rejecting the settlement of the Google Books litigation, CAA’s counsel was approached by Public Knowledge (“a D.C. public interest group working to defend citizen’s rights in the emerging digital culture”) asking if CAA remained interested in orphan-works legislation and, if so, to sign a letter to Congress requesting that orphan-works legislation be reintroduced.

Cost for Reproducing Images of Artwork in Museum Collections

In recent member surveys, one of the most critical issues articulated was the high cost of reproduction rights of works in museum collections that are not under copyright. CAA has requested formal attention to this issue from the Association of Art Museum Directors.

Fair Use

CAA’s Committee on Intellectual Property, chaired by Doralyn Pines and Christine Sundt, is reviewing and proposing revisions to the Intellectual Property in the Arts section of the CAA website. The committee will also review a draft set of fair-use guidelines being prepared by the Art Law Committee of the New York Bar Association and the Visual Resources Association; after such review, the CAA Board of Directors may be asked to endorse the updated guidelines.

Extension of Copyright Term

CAA signed a Supreme Court amicus brief regarding the retroactive application of the extension of copyright term in Eldred v. Ashcroft. The Copyright Term Extension Act of 1998 was challenged with the original complaint filed on January 11, 1999. CAA was an amicus when the case was brought to the Supreme Court, which held on January 15, 2003, that the Copyright Term Extension Act of 1998 was constitutional (see the March 2003 CAA News).

Artist-Museum Partnership Act

CAA actively supports the Artist-Museum Partnership Act, which establishes fair-market-value tax deductions for works given by artists instead of the current limitation to cost of materials. Information on the progress of the Artist-Museum Partnership Act is published in the weekly CAA News email, posted in the Advocacy section of the website, and communicated to the Services to Artists Committee. If and when a bill is subject to a vote in Congress, CAA will urge all members, affiliated societies, and committees to contact their representatives.

Coalition on the Academic Workforce

CAA is a member of the Coalition on the Academic Workforce, which recently prepared a survey of contingent faculty. Over 30,000 individuals completed the questionnaire—many were CAA members—and the results will be tabulated this spring. Information on all aspect of working conditions is included in this survey and will assist in informing future standards and practices. CAA’s Professional Practices Committee and Education Committee are kept informed of the survey and its tabulation and will analyze the results and determine action to take that will benefit CAA members. Contingent faculty is currently responsible for 76 percent of teachers in American colleges and universities. CAA supports equitable hiring, representation, and benefits for this growing segment of the faculty.

How It Works

How does advocacy work at CAA? CAA both monitors advocacy issues and is approached by universities, colleges, organizations, and individuals who raise issues via CAA’s counsel, officers and members of the board, executive director, deputy director, affiliated societies, or other partner organizations such as the National Coalition Against Censorship, the Association of Art Museum Directors, or the associations of the American Council of Learned Societies. If an issue warrants action and is consistent with the advocacy policy, CAA will prepare a response. Depending on the importance and complexity of the issue, CAA will prepare an email, letter of support, or statement; cosign a letter with other organizations; or, in exceptional circumstances when legal action is required, prepare an amicus brief or support proposed legislation. All advocacy issues brought to CAA’s attention are reviewed by the counsel and the executive director. Consistent with the organization’s Advocacy Policy, the Executive Committee and, if necessary, partner organizations also review the issues. Important matters where legal action is involved will be brought to the board.

At the February 2011 board meeting, Andrea Kirsh, then vice president for external affairs, volunteered to work as CAA’s advocacy coordinator. She has since actively assisted in carrying out research and drafting letters and statements. CAA members who would like to be informed of the organization’s advocacy efforts—and spread the word—can send an email to nyoffice@collegeart.org.

During summer 2010, Linda Downs, CAA executive director, and Andrea Kirsh, then vice president of external affairs, visited more than a dozen deans and chairs of art and art-history departments in New York and Philadelphia to better understand the needs of their students and faculty. One topic that arose among studio artists was CAA’s stance on orphan works, which some perceived as not protecting artists. Downs explained that CAA was indeed aware of balancing the interests of artists and art historians. Following this, the Board of Directors thought that all studio departments should understand CAA’s position and has thus sent the following letter to them.

Dear Colleagues

This letter is intended to address concerns about CAA’s advocacy on behalf of orphan-works legislation. An orphan work is any copyrighted work—book or other text, picture, music, recording, film, etc.—for which the copyright owner cannot be identified or located. Everyone recognizes that there is an orphan-works problem. The inability to clear rights for orphan works often precludes their use, by scholars, publishers, students, and creators. The US Copyright Office documented the considerable extent of this problem, and the CAA submitted comments to the Copyright Office describing the adverse effect of the orphan-works problem on artistic creation and scholarship.

The Copyright Office recommended legislation that would amend copyright law to allow orphan works to be used without an undue risk of suit to the user—of statutory damages or an injunction—assuming that the user conducted a diligent search for the copyright owner and properly attributed the work as an orphan work. That has been the basis of the legislative proposal seriously considered by Congress. CAA has only supported those proposals which are appropriately balanced. Should the copyright owner pursue and prevail in an action for infringement against a user, the legislation requires appropriate compensation for use of the work.

In advocating for orphan-works legislation, CAA has taken full account of the concerns of artists, designers, and photographers that such legislation, if enacted, would allow bad-actor copyright infringers to avoid statutory damages or injunctive relief.

The legislation supported by CAA would require users to conduct diligent searches, with the parameters of such a search elaborated in the legislation itself, to identify and locate copyright owners as a precondition of having such works become eligible for orphan-works treatment. The last legislative proposals, supported by CAA, are detailed and meaningful, but they also are not inappropriately or unduly burdensome. They include searches of Copyright Office records and the use of other appropriate databases and other resources. In any litigation, the burden would be placed on the users to demonstrate that their searches complied with the requirements of the law.

CAA is aware of fears that artists whose works cannot easily be signed, or have other identifying information attached to them, that are “born orphan” because they never are associated with identifying information, or that can easily be stripped of identifying information and be made available on the internet, are or might readily become orphaned. Concerns have been expressed that such works could be used unfairly and unscrupulously, without appropriate compensation and attribution. Other concerns have been raised that users might prefer to use works that appear to be orphaned (and avoid having to pay for them) in lieu of engaging creative artists to create new works.

CAA is not unmindful of these concerns. CAA encourages artists to consider the advantages of registering their works with the US Copyright Office (www.copyright.gov/eco/). A diligent search under orphan-works legislation would include the office’s records.

For CAA’s statement on orphan works, please refer to www.collegeart.org/publications/ow. If you have further concerns about the implications of orphan-works legislation, we would be happy to discuss them.

Sincerely,

Barbara Nesin, MFA
President, College Art Association

At Arts Advocacy Day 2011, CAA representatives from five states—Connecticut, Georgia, Pennsylvania, New York and Texas—will meet congressional staff to advocate for the visual arts in higher education. Organized by Americans for the Arts, of which CAA is a member institution, the annual event will take place April 4–5, 2011, in Washington, DC. CAA delegates will address the following issues of critical importance and invite you to register and get involved.

As the leading association in the world that represents professional visual-arts practitioners, CAA endorses government support of creativity and innovation that has made this country great.

CAA seeks support for artists and art historians who work in colleges, universities, and art museums, as well as for independent artists and scholars. The federal government must support professionals in the visual arts like it does for practitioners and scholars in other arts, such as dance and music. The professional practice, study, and teaching of the visual arts deserve further support because of the power these disciplines have to educate, inspire, and stimulate independent thinking.

CAA also believes that public and private partnerships should expand not only between schools and communities but also among the academic community in colleges, universities, and art schools.

CAA fully endorses the creation of an art corps comprising professionally educated artists and art historians who will work with students in urban schools on community-based projects, raising an awareness of the importance of creativity and professional artists. CAA also encourages government-sponsored projects such as Americorps and Vista to emphasize the visual arts. Young artists are eager to work on environmental programs that involve community-organized design projects such as, for example, mine-reclamation endeavors in which community recreation centers are established near cleaning pools for toxic mine runoff to help redevelopment the land.

CAA would like to emphasize that, in order to champion publicly the importance of arts education, America must support the preparation of artists and art historians who teach on a primary, secondary, and college/university level. The visual arts are integral to core curricula in each grade and at every stage of education.

CAA fully supports increased funding for the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute for Library and Museum Services. Specifically, professional artists must supported on individual bases. CAA strongly recommends that the NEA reinstate Individual Artist Fellowships, so that visual artists can pursue and develop their work. Similar grants in other areas of the arts and humanities far exceed federal and private foundation grants to professional visual artists, who are often forced to abandon their own work to support themselves and their families. Professional artists desperately need government support.

CAA supports legislation to change tax laws for artists. The organization has worked hard—and will continue to work hard—to support the Artist-Museum Partnership Act, first introduced by Senator Patrick Leahy (D-VT) in 2005. The proposed act would amend the Internal Revenue Code to allow artists to deduct the fair market value of their work, rather than just the costs of materials, when they make charitable contributions. Not only has the current tax laws been harmful to artists, the creative legacy of a whole generation of American visual artists has been lost.

In addition, CAA supports legislation that would allow scholars to publish so-called orphan works, which are copyrighted works—such as books, pictures, music, recordings, or films—whose copyright owners cannot be identified or located. The House of Representatives and Senate has previously introduced orphan-works bills, and CAA hopes Congress will pass one in the coming session. The lack of clear laws and procedures regarding the issue has prevented many art historians from publishing orphan works, causing a great detriment to scholarly publishing and research.

CAA supports cultural diplomacy by enhancing international opportunities, through agencies such as the United States Information Agency, for professional visual artists and art historians to exhibit, teach, research, and lecture. CAA’s international membership testifies to the promotion of cultural understanding that occurs through international cultural exchange. Every year CAA seeks funding to support the travel of international art historians and artists to our Annual Conference. Current Homeland Security laws and a lack of government funding make it difficult for foreign art historians and artists to present their work and research at conferences, symposia, and exhibitions. CAA endorses streamlining the visa process and providing government support for international exchanges of graduate students and professional artists and art historians.

CAA supports providing healthcare to independent artists and scholars—a major concern for those professionals who are not associated with a college, university, or art museum and who attempt to work on their own to support themselves. Each state creates its own health-insurance legislation, and thus differences in laws regulating insurance companies prohibit professional organizations such as CAA from offering national healthcare coverage.

The Office of the Intellectual Property Enforcement Coordinator (IPEC), a federal agency in the Executive Office of the President, seeks opinions on how the federal government should enforce copyrights and handle infringements. In a two-part survey, IPEC not only solicits written submissions about economic costs associated with intellectual-property violations, but also requests specific recommendations on how such violations can be dealt with. All comments should be sent by email.

Public Knowledge, a digital-issues interest group based in Washington, DC, writes, “The request for comments seems geared to take in complaints from big media companies and other major holders of copyrights, patents, and trademarks,” but also that it is “open to everyday consumers, citizens, and members of the public.”

An area that art historians may wish to address, for example, is the way that copyright controls on images have made it difficult for electronic texts to include copyrighted art images. For artists, an area of concern is the high cost of registering copyright in a visual image, and lack of good bulk registration tools at the US Copyright Office for visual-image rights holders.

Read more about the issue on the Public Knowledge website, which also includes a sample letter that you can tailor to your needs. Deadline: 5:00 PM on March 24, 2010.

CAA invites members in the tristate area of New York, Connecticut, and New Jersey to attend an upcoming panel on orphan works, entitled “Lost and Found: A Practical Look at Orphan Works.” The program is free and open to the public, but registration is required.

Lost and Found: A Practical Look at Orphan Works
Tuesday, October 20, 2009
Meeting Hall, New York City Bar Association, 42 West 44th Street, New York

How should the law treat “orphan works”? Please join us as we discuss proposals that would enable copyrighted works to be used when their owners cannot be located to obtain necessary permissions. What should be the obligations of potential users with respect to searching for copyright owners? How should infringement claims be handled if a copyright owner emerges? Do different types of copyrighted works present unique issues? What roles might registries and recognition and detection technologies play? Our speakers will address these and related questions, focusing on orphan images.

June M. Besek, executive director of the Kernochan Center for Law, Media, and the Arts, is the panel moderator. Speakers are:

• Brendan M. Connell, Jr., Director and Counsel for Administration, Solomon R. Guggenheim Foundation
• Frederic Haber, Vice President and General Counsel, Copyright Clearance Center
• Eugene H. Mopsik, Executive Director, American Society of Media Photographers
• Maria Pallante, Associate Register for Policy and International Affairs, US Copyright Office
• Charles Wright, Vice President and Associate General Counsel, Legal and Business Affairs, A&E Television Networks

“Lost and Found” is sponsored by the Art Law Committee (chaired by Virginia Rutledge) and the Copyright and Literary Property Committee (chaired by Joel L. Hecker) of the New York City Bar Association, in conjunction with Columbia Law School’s Kernochan Center for Law, Media, and the Arts.

After a flurry of Congressional activity last week and the passing of the Shawn Bentley Orphan Works Act in the Senate, Gigi Sohn of Public Knowledge (PK) notes, orphan-works legislation has died in the House of Representatives. She writes:

The negotiations went on for hours and hours on [October 2–3], but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with on language with the House staff…. Time had run out.

Though several matters remained unresolved, which Sohn discusses, she was proud of the progress made so far and is pleased that the issues surrounding the documentation of a good-faith search have been narrowed so that future legislative efforts may be more fruitful.

For several years, Congress has been considering legislation to address issues raised by orphan works. Orphan works are works that are still in copyright, but where the copyright holder cannot be found and the rights cleared. Most recently, in September 2008, the Senate passed S.2913, the Shawn Bentley Orphan Works Act of 2008. CAA has been supporting this legislation, as a boon for both CAA’s artist and scholar members.

CAA is the nation’s largest organization representing the visual-arts communities. With its wide-ranging membership, including artists, scholars, museums, and other visual-arts professionals, CAA has been involved in discussions on orphan-work legislation from the beginning. With the assistance of anecdotes from scores of its members CAA filed substantial comments with the US Copyright Office in March 2005, identifying circumstances in which current copyright law impairs the use of orphan works in artistic and scholarly works alike and proposing a legislative approach that would balance the legitimate interest of creators, copyright owners, and users. CAA also participated in roundtable discussions held by the Copyright Office. In January 2006, the Copyright Office issued a report that cited the CAA’s comments and recommended adoption of orphan-works legislation, including conditions that would appropriately balance the interests of contemporary artists and other copyright owners with the interests of users of orphan works.

From the time that such legislation was first introduced, in May 2006, to implement the recommendations of the Copyright Office and, throughout the 110th Congress, CAA has been working with other organizations—including museums, universities, libraries, and commercial publishers, as well as the Copyright Office—in crafting orphan-works legislation. The purpose of the legislation is to amend the copyright law to allow orphan works to be used without an undue risk to the user—of statutory damages or an injunction—assuming that the user conducted a diligent search for the copyright owner and properly attributed the work as an orphan work. At the same time, CAA, with its membership of artists, designers, and photographers, has taken full account of their concerns that orphan-works legislation, if enacted, would allow bad-actor copyright infringers to avoid copyright liability. In particular, CAA is aware of fears that artists whose works cannot easily be signed, or have other identifying information attached to them, might readily become orphaned and, in this way, be used unfairly and unscrupulously, without appropriate compensation and attribution.

CAA supports legislation that would require users of orphan works to conduct diligent searches to identify and locate copyright owners as a precondition of works becoming eligible for orphan-works treatment. The search requirements that CAA supports are detailed and meaningful, but they also are not unduly burdensome. They include searches of Copyright Office records and the use of other appropriate databases and other resources. The requirement that the user conduct a diligent search, with the parameters of such a search elaborated in the legislation itself, is intended to ensure that copyright owners would not be at risk from bad-faith searches. CAA also has been working hard to ensure that, should there ever be litigation surrounding the use of an orphan work, the burden would be on the user to demonstrate that his or her search was diligent. In addition, CAA supports legislation that would permit courts to pay heed to best practices for searches that would be crafted by professional organizations, such as CAA. If the legislation is enacted, then CAA will be uniquely well-suited to develop and promulgate guidelines on best practices for searches, given the wide range of interests of its members and the wide spectrum of copyrighted works that they create and use.

Finally, CAA encourages artists to consider the advantages of registering their works with the US Copyright Office. Under the legislation supported by CAA, in coalition with other visual-arts organizations, ordinarily, for a search of an orphan-work copyright owner to qualify as diligent, the user generally should search the Copyright Office’s registration records, as reasonable under the circumstances. By registering their works, CAA’s members will be better able to protect their creative property while allowing for appropriate and lawful use under the copyright law.