Is You In Or Is You Out?
I admit that I haven't paid the slightest attention to the growing concern in the creative community about the Shawn Bentley Orphan Works Act. But having just stumbled across a cogent explanation of what lies behind the Act and what the possible outcome could be for all visual artists, I'm now, as Ed Anger would say, "pig-biting mad." And why is that, dear reader? Because the underlying intent is nothing less than the creation of an administrative cloud of Kafkaesque proportions that would have the delightful effects of stifling creative visual expression of all kinds and putting in place an Orwellian monitoring program, all while shoveling a boatload of money into the pockets of nebulous private enterprises. Hey, that's three literary references in one paragraph!
It all sounds so innocent when you visit the Copyright Office site and read its take on the origins of this malevolent initiative: "During 2005, the Copyright Office studied issues raised by “orphan works”—copyrighted works whose owners may be impossible to identify and locate. Concerns had been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts, or from making such works available to the public." The planet is melting down, we're running out of everything, war is breaking out all over and... "concerns" were raised about some "uncertainty" in the realm of visual works, for which it wasn't possible to locate the creator. Hands up, all those who have been "needlessly discouraged" by this prospect. Me neither.
But these fine words seem to be just the facade for some monstrous plan worthy of the X-Files—you know, like in one of those scenes where the camera pulls back showing Mulder gaping at endless rows of filing cabinets containing detailed information about all of us. Brrrr. Because, if you can believe this, the idea seems to be that in this brave new world (okay, I'll stop now) any visual creation not registered with some to-be-created private registry will simply be... orphaned. Which is another way of saying up for grabs.
So if this scenario is allowed to come to pass, there will be a price tag on every photo, every sketch—everything and anything visual that you might have the remotest hope of keeping from being freely used commercially by a stranger. A great step forward, wouldn't you say? Much better than allowing lingering "concerns" to continue, regarding the usage of... what exactly? I couldn't find any real-world examples of where this Act would actually make any kind of a positive difference for either an image creator or buyer. But of course, that's not really the point.
The good news, if good news there be, is that a growing number of organizations representing artists, designers and photographers are getting involved in trying to put a spike in the heart of this beast. So now it's your turn. You can read more about the Act on the Advertising Photographers of America site, among many others. There's still time to nip this in the bud. But if you sit on your hands, you'll only have yourself to blame if this, or similar, legislation becomes law. Don't say I didn't warn you! And by the way, don't get mad at Shawn Bentley—he's dead.
Chris Dickman
Graphics.com | Also blogging on Photos.com
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