Not Just Photos at Risk

The "Orphan Works" proposal was initially requested to respond to a fairly narrow need. Museums and libraries often want to publish valuable material from their large archives of historical works. Even after an exhaustive and comprehensive searches they sometimes cannot locate the copyright owner to negotiate permissions. The original intent was to somehow limit their liability in these cases if the author were to emerge later on, while at the same time protecting the rights of the copyright owner.

Visual artists are sympathetic to these concerns. A carefully crafted, narrowly focused proposal could indeed resolve the issue.

Instead, what we got from the Copyright Office is an extremely wide-ranging exemption from liability for all users, for all works, in vaguely defined circumstances, along with the removal of effective deterrents for infringement in cases far removed from museums and libraries.

It is like a homeowner who has trouble with the front door key jamming at night in the dark and calls a locksmith for help. After careful study the locksmith comes up with a solution - "to remove the front door." Not a great idea!

It turns out that a lot more than historical archival works are potentially affected, and a lot more than just photographs.

Copyright protection also extends to textile designs, carpets, quilts, and clothing. It covers jewelry, sculpture, stained glass and wallpaper. It includes prayers, tattoos, fonts, advertising jingles and sheet music....and more.

Imagine how readily a user could come upon one of these works, search for the copyright owner, and then proceed to use the work as an "orphan."

Copies of a fabric design found in an Asian flea market, the melody of a half-remembered hymn, the letters of a purloined font found on the internet, a quilt bought long-ago at a country fair. All of these are fair game under the current proposal.

It is a lot more than photographs that are at risk.