Bill Strips Artists of Essential Copyright Protections
Legislation to limit artists' ability to protect their work from copyright infringement is being fast-tracked through both houses of Congress, and may be brought to the floor for a vote as early as this month. Passage of a similar measure was dashed in 2006 after opposition by visual artist organizations.
H.R. 5889, The Orphan Works Act of 2008/S. 2913, The Shawn Bentley Orphan Works Act of 2008 will allow anyone to use, alter or publish an artist’s work for any reason without permission or payment if that work is designated an ‘orphan.’ A work of art could be designated an orphan work by anybody if its creator/copyright owner could not be located . The measure before Congress makes it easier to declare works ‘orphans.’ An individual has free reign to use or alter a piece of visual art if they have performed a ‘reasonably diligent’ search and are unable to locate an artist or copyright. No parameters are offered in the bill to determine what would comprise a “reasonably diligent” search.
The Orphan Works Act severely threatens the commerce of independent medical and scientific visual artists. “This bill jeopardizes the very core of a medical illustrator’s ability to make a living. Licensing permission accounts for a substantial portion of any artist’s income,” says Marcia Hartsock, owner of the Medical Art Company in Cincinnati, OH. “Now, if someone comes along and does a perfunctory search and doesn’t find my work in these image registries, they can use it—for legitimate or illegitimate uses—without my permission and without cost to them.”
One of the most objectionable provisions in the legislation allows non-profits to be exempt from even “reasonable compensation” if they infringe an artist’s work by declaring it an “orphan”. Non-profits account for the majority clientele for many medical illustrators, and these medical research foundations are some of the wealthiest in the world. “It would especially hurt medical illustrators who would lose much of their client base – non-profit hospitals, universities and research foundations – because of the easy availability of large numbers of orphaned images,” says Bill Matthews of Lifehouse Productions in Manchester, CT.
Rick Gersony, President of Medmovie in Lexington, KY contends that, “If these medical art businesses were caused to fail, non-profit organizations would lose a valuable, highly trained group of individuals, whose innovative, educational work supports their missions. Why would Congress remove our copyright protection, breach our licenses and hinder the growth of this emerging digital US intellectual property sector?”
Medical illustrators are highly-educated professionals and their visual art educates medical and allied health professionals, as well as the general public. Their work also supports medical research for the advancement of science by commissions from nonprofit medical research foundations. Medical illustrations appear in medical textbooks, medical ads, professional journals, videotapes and films, computer-assisted learning programs, exhibits, lecture presentations, courtrooms, general magazines and programs for TV.
Registering Artwork to Avoid Orphan Status is Cost-Prohibitive and Untested
The bill has a disproportionate impact on visual artists because it is common for an artist’s work to be published without credit lines. This is especially true of art published in the Internet Age. The most common scenario of orphaning in visual art is the unmarked image. There would be only one way to identify the artist belonging to an unmarked image and that would be to match the art against an image-recognition database where the art resides with intact authorship information. Such technology is untested and such databases do not currently exist. The Copyright Office has proposed and the legislation has enshrined the creation of visual art registries and has stated explicitly that failure of an artist to meet this bureaucratic burden would result in his work automatically becoming an “orphan” and subject to legal infringement.
The cost of digitizing and registering their artwork will far outstrip the time or financial resources of most visual artists. Their inability to financially comply with the registries will result in vast numbers of visual works being exposed to legalized infringement. “This is an irresponsible and coerced forfeiture of reproduction rights protections guaranteed to creators by the Constitution of the United States. It is going to affect the incomes and intellectual property rights of every illustrator, fine artist, graphic artist and photographer in the world,” states Bill Westwood, a medical illustrator in Albany, NY.
Non-profits, publishers and other art licensees will be less likely to commission new work from artists if they can surf the net for free images that have become separated from identifying information. Medical illustrators' pre-existing paintings and drawings - orphaned and re-published in some transformative manner, will see infringing opportunists co-opt their self-created intellectual property.
The passage of this bill would deprive medical illustrators of their exclusive right of creative control and ownership of their work. Under this law, an illustrator would be powerless to stop the unauthorized uses of his art, even in cases where the illustrator would never want or permit those uses. Infringements sanctioned under this Act will also breach existing exclusive use contracts already in force between illustrators and their clients because many illustrators work under non-disclosure agreements and exclusive licensing arrangements. “It boggles the mind that this is under consideration. Where is the economic impact study, or even any due diligence, to determine the harm and chaos this legislation will cause in the medical field? This will severely undermine medical illustrators’ ability to meet the needs of our clients, protect their interests, and protect our works,” says Cynthia Turner of Alexander & Turner Medical Illustration Studio.
The Association of Medical Illustrators (AMI) is an international organization founded in 1945. Its members can be found in all centers of biomedical research and translate the complexities of scientific thought in innovative visual ways. There are approximately 1,200 practicing medical illustrators in the U.S.
Think this is a bad idea? Please go to the Illustrators Partnership and express your opinion to someone who will vote on this.
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