posted by Christopher Howard — May 18, 2011
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.
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.
Barbara Nesin, MFA
President, College Art Association