We've been keeping tabs on the whole issue of the US Orphan Works Bill through the comics creator who has her finger permanently of the pulse – Ms Colleen Doran.
Colleen reports in her Distant Soil blog that there is good news on the horizon – Congress is about to abolish the Intellectual Property (IP) Subcommittee on Judiciary Panel – but not to get too excited about it, as the Orphan Works Bill could become the scylla and charybdis of American politics.
House Judiciary Committee Chairman Conyers will abolish the Subcommittee on Courts, the Internet, and Intellectual Property in the new Congress and instead keep intellectual property issues at the full committee level ... Hot topics like overhauling the U.S. patent system; ending a long-standing music royalty exemption for AM and FM radio and changing a portion of copyright law that deals with musical tracks, writings, images, videos or other content whose owners cannot be easily identified drew ample attention from the high-tech and entertainment industries.
The reason we've taken an interest in this is because of the potential spill-over to Australian artists if this Bill is passed. Here is a typical case study of the implications, affecting no other than Black Mermaid Productions™ artist himself, Jozef Szekeres.
A few months ago Jozef was commissioned to provide some artwork for Sleazeball 2008. The organisers wanted to release a 16-piece limited edition trading card set under the 'Villain's Lair" theme, which focused on the iconic artwork of Glen Hanson. Mr Hansen, who was the advertised and promoted celebrity artist for the event, was to provide five characters for the cards. Jozef was asked to provide 11 further characters and to render them according to Glen Hanson's distinct style. Jozef made it clear from the first meeting that the card set would need to be credited properly with the appropriate signatures and copyright information, so as not to cause confusion in the marketplace about who had painted what character. This was duly reflected in the contract.
After the card set was released, Jozef noticed that the identifying information was not on it for either artist. When he queried the organisers they claimed that the artwork had not been checked internally and the artists' credits had been forgotten. However, all the appropriate attributions had been made on the rogue's gallery poster of the entire cast of characters which had been released at the same time and therefore, at least from their point of view, it was not a problem. Jozef was given two tickets to an event as compensation.
These trading cards are now in general circulation and Jozef's fears have become real. Firstly, when he has talked to people who had a card set and identified himself as the artist for his specific pieces, most of them asked him if he was Glenn Hanson. Secondly (and here we must project into the future a bit), long after the Sleaze Ball 2008 information is taken off the Mardi Gras website and long after the organisers have moved on, in all likelihood people will assume that Jozef's art is in fact Glenn Hanson's and will either attribute it incorrectly or will have nowhere to start tracking the identity of the real artist for those specific eleven character pieces. If these cards were to surface in the US some time down the track and somebody wanted to use the artwork under the Orphan Work Bill, then they could do some preliminary searches and then if unsuccessful in the first instance, use the artwork without permission. Furthermore, if it is published in any form where it is presumed to be Glenn Hanson's work (and Glen Hanson is not there to tell them otherwise) then the artwork could be credited to the wrong artist for years and years to come.
This is all speculative we know, but these are also very plausible scenarios. The cards are in print forever (or at least until the last set remains on earth) but the artist and the people or archives who/which would tell us otherwise, could be long gone. We don't think it is unreasonable for an artist – any artist (and we use this term to include musicians, writers, sculptors and so on) – to protect their artistic legacy.
It is our understanding that under the Orphan Work Bills if someone searches for the copyright holder (usually the artist) and cannot find them and they can prove that they actually did a basic search, then the artwork is up for grabs for them to use as they like when they like. In the case of these trading cards, because the art does not carry any identifying marks or signatures to point people in the direction of the artist (Jozef), this is quite a likely outcome.
So if you are an artist then use those signatures, watermarks, copyright and trademark information liberally so there are electronic and print published pointers and pathways to you now and in the future. And furthermore ... you may also want to embed a clause in any upcoming contracts that basically gets the commissioner to have an added interest in being responsible about complying about attribution so there are no accidental slip ups – if the artwork is released without proper credit then the commissioner will need to compensate you financially for their lack of attention to detail.
And if you are a commissioner and not an artist then try to look at it from an artists' point of view – they have a moral entitlement to be credited and paid for their art.