Orphan works


Dear Artist,

There’s a big dust-up coming to the US Congress. It involves moving the goalpost on copyrighted works of art. It’s about “orphan works.” These are works of art where no one seems to claim copyright — or where the original author is hard to find. This new legislation, if passed, will isolate the USA from the Berne Convention and make an impact on the livelihood of many creative people worldwide, particularly photographers and illustrators.

It’s also possible to see the point of view of folks on the other side. Right now it’s difficult for historians and scholars to get clearance for a lot of things. Researchers spend hours on the telephone and the Internet trying to get permission from dead and invisible creators who sometimes don’t care. The American Historical Association, for example, explains that orphan works “hamper the historian’s ability to work with the raw materials of history.”

For those artists who want to get paid for their stuff — particularly their old stuff — it’s going to take a lot of slogging to go through, and put a copyright bug on, everything they’ve done.

If legislation goes ahead, it looks to me as if copyright and owner information must now be embedded in all future art. Digital cameras will have to feature a signature option for every photo — no matter how zoomed or cropped. Users would then have no choice but to track down and ask permission. On the other hand, unsigned or un-bugged material would be deemed fair game for reproduction or other uses. It would certainly be a boon for educators. With the current trend toward unbridled sharing within our global village, this could mean the end of copyright.

It’s a fact of life for artists that most infringements are too expensive to litigate anyway. Also, there’s a grey area between benign use and outright commercial exploitation. It’s been my experience that painters are often respected in this matter — perhaps it’s the tradition of the signature in the lower right. For architects, photographers, illustrators and graphic artists, it’s another kettle of fish. Some of them are now looking for other jobs.

Best regards,


PS: “This legislation would undermine our ability to control our rights and make a living from the work that we produce.” (Cynthia Turner, medical illustrator)

Esoterica: There were several surprises in our recent, somewhat successful, fight with the Chinese pirate-art website Arch-World. One was how readily they complied with our individual requests to remove our art from their site. Another was that while we were able to get more than 800 artists removed, a few artists reported that they “didn’t care” if the Chinese made a few bucks from their images. “I’ve already been paid for those paintings. I got what I wanted,” said one guy. The “don’t care” attitude extended to some museums and art galleries, too. There are a few Western orphans wandering around in China.


Further information on “Orphan Works”

Article on Orphan works: Whose Work Is It, Anyway? by Scott Carlson in the Chronicle of Higher Education.

Orphaned photographic works draw concern from artists, families, copyright officials, originally from the Chicago Tribune.

Eric Vincent of Charleston, S. C., President-Vincent Media Group, Inc., and GryphonPIX, Inc. is well connected to this effort.

Article; The End of Copyright by Ernest Adams

Our Arch-World updates and artist finder.

To write to the U.S. Congress: http://www.illustratorspartnership.org/04_forums/index.php

A complete list of U.S. lawmakers and their fax numbers can be found at Illustrators Partnership of America.


Bad attitude
by Deborah McLaren, Mystic, CT, USA


“Archangel Michael”
egg tempera painting
by Deborah McLaren

You reported that in your Arch-World quest you found artists who didn’t care if they were on there or not. I can’t imagine why those artists, if they make their living from their art, didn’t care. They should care, if not for themselves, for their fellow artists who do. By not caring, they make it hard for the rest of us who do, discount our livelihood and theirs too. Small wonder it’s difficult to make a living being an artist with attitudes like that.





Universities are often offenders
by Julie Rodriguez Jones, Spanish Springs, NV, USA


“Fat Tuesday” (Mardi Gras Mask #2)
digital painting by
Julie Rodriguez Jones

Currently, the unauthorized use of artists’ works on the web has plagued many of us in the IAAA. (International Association of Astronomical Artists) I have discovered my art — clearly not orphaned, as they have taken it from my web site — on three University’s web sites and am dealing with that. Universities know better. I can’t imagine the problem posed if “Orphan Works” becomes law. I believe the worst problem with orphaned works is that people may claim they were orphaned even if signed. A little “clone” or “healing” brush in Photoshop can easily remove a signature and then you immediately have a claim of an “orphaned work” For me, I’m putting pen to paper and writing to congress.


Big community pot
by Cecilia Henle, Portland, OR, USA


“Quiet Moments”
watercolor painting
by Cecilia Henle

From everyone I have talked with, I am getting the feeling that this is part of the trend towards homogenizing America. I guess being an individual creative source that is respected is on the way out? Maybe, in the future, all artists will be asked to place their ideas and work into a big community pot, and anyone can dip into it whenever they are hungry for inspiration.





Let the game continue
by H. Margret, Santa Fe, NM, USA


“The Player”
acrylic painting
by H. Margret

Opening doors to freedom of expression is ultimately a higher good. And the concept of “intellectual property” has been used selectively. Look at how Picasso, Matisse, etc. were influenced by non-copyrighted African sculptors. What mechanisms ever protected the tribal artist, who is a source of great inspiration for many educated artists? So let the game continue. And it may be that this ruling will foster a huge new acceptance for truly creative work… because such work hasn’t been seen and used before, it will stand out all the more.



Use of old masters
by Hymne Laubscher, South Africa

I don’t know much about copyright on art. Since I love to do an eclectic type of work where I combine works of old masters with my own ideas, I would really like to know what is legal and what isn’t. I am from South Africa and I don’t know how these copyright changes affect us. Any information would be helpful.

(RG note) Thanks, Hymne. Old masters are, for the most part, in the public domain — so you can use them. As I see it, the new US legislation, if it goes through, will make it possible for anyone, in any place in the world, to pick up and use any US, un-bugged, unclaimed (orphaned) material with impunity and without the original author or heirs having much recourse. Works originating or created in most other countries will still theoretically remain protected.


Cross border problems
by Marie-Catherine Codine, UK

I’m French, I live in London, UK, and sell my art on the Internet — illustrations etc. Sometimes the site I either sell on or where I display my work is owned by say a Finnish person, but the physical server might be in the US (often happens — space is cheaper in the US). If the new bill passes, will my art be under European protection or under US law? Will Americans be legally entitled to steal a work I will not have signed clearly or included my cell phone number on, while European thieves will fall under the Berne convention? Most artists would like to sue at a low cost. My thought is this: why can’t all artists create a sort of legal commune, have some lawyers work for them all year round, ready to pounce as soon as a thief acts? The cost could be low for each artist if there are enough of them united.


To care or not to care…
by Eva Kosinski, Louisville, CO, USA

It makes far more sense for those who “don’t care” to be the ones to do some kind of paperwork. Most artists want their work to be copyrighted, and it should be by default, as it is in Colorado. Artists retain copyright and reproducers must get permission, even once the work is sold. Those who don’t care don’t follow up; those who do care (the majority) are protected. Further, there are artists’ registers across the USA; it is the artist’s responsibility to be registered so folks can find them. If they give up that responsibility, they do not have the right to whine if someone takes their stuff. If they are registered somewhere where they could be found, then they have the tools they need to prosecute.


Don’t get complacent
by Cristina Acosta, Bend, OR, USA


“The woman behind the brushes”
Christina Acosta

Don’t think painters are so safe from copyright infringement. Complacency has no place in the marketplace. Just this past year I dealt with an infringement of my work involving the wife of a well-known painter — surely someone who would know better — who blatantly copied my work from my book, Paint Happy! (Northlight 2002, 2004), then exhibited them in a high-end gallery as her “originals.”

I encourage all artists to fight this orphan works pending legislation. If you don’t think it applies to you — think again. The visual language of our culture is created by artists of all kinds everyday — painters, filmmakers, writers, and more. Without laws to support financial remuneration, the artist will lose one of the most basic rights in a capitalist economy — to benefit from one’s own efforts. If the likelihood of visual artists making a living with their creative work becomes even more difficult, the entire culture suffers the creative loss. All creativity will be ultimately stymied.

The USA was founded by creative and courageous people who relished their role as citizens. During the past few decades marketers pushing products for big business have peddled the culture of consumption, convincing citizens to think of themselves as consumers rather than creators. This legislation is a product of that consumerist mentality. Choose to create and support others who create — the culture of our towns, cities and countries benefit.


The end of significant US artistic work
by Kenneth Smith, Duncanville, TX, USA


magazine cover photo
original painting
by Kenneth Smith

This Orphan Works Legislation gives publishers impunity to publish or reproduce any supposedly or purportedly indeterminate-authorship work first and let the claimant to the copyright demand compensation second, after the fact of publication. If you think you have “secured” your copyright by producing the work with the appropriate attribution and even registering it with the Library of Congress, you have got another think coming: any enterprising publisher or reproducer can always find a third party to deface a copy and remove the copyright claim, or a skillful attorney to find impediments to the claim. Anyone who wants to plagiarize a work — or any shill that a publisher wants to set up to plagiarize a work — can use this law to stave off prosecution or other legal safeguards of a creator’s rights. (I had my fill of larcenous agents abroad, who already had plenty of ways to baffle any legal recriminations for publishing my art without remuneration.) The prima facie presumption of right shifts to the publishers, who are (as Hobbes calls it) in “a state of nature” or virtually perfect license to publish what they can get their hands on (and I suppose entitled also in the process to alter and adapt the work as they like, just as if they were editing it to suit the market or to suit the publisher’s biases; so much for the author’s or artist’s “moral right” to maintain the integrity of his work).

This legislation is going to obligate creators to monitor the entire spectrum of forms of publication in the US, which means money and time wasted to no profit for the talent. If no mutually congenial fee can be privately agreed upon ex post facto by publisher and “inadvertently wronged” claimant, the claimant will have to sue in courts where the attorney’s fees and court costs of course vastly exceed the value of most publishing rights; and count on it, these courts will be stacked just as our Republican-saturated courts are, from the very top on down. This legal strategy merely transfers into the copyright domain the long-time Bush method of “shock and awe” or Blitzkrieg, blow them away with something monstrous and then defy them after the fact to “do something about it.” Present them with a fait accompli and see how good they are at undoing realities that take place by force majeure. All this way of thinking is in compliance with the general nihilist worldview that brute power rules, and civility and respect are for suckers — if you have the power to do something it’s foolish not to let the power become its own rationalization or justification. Smash and grab. If it feels good, do it. I can resist anything but a temptation. Never make the mistake of respecting the rights of a pathetic sap who hasn’t got the countervailing power to defend himself. What worked so well for the Nazis against the Jews can be universalized to work against nearly anyone. The law is converted over into an instrument for normalized or legitimized rapine. And that will of course be the end of any significant artistic or literary or musical or other work coming out of the piratical USA. No talent or genius committed to investing his life into his work is going to want to be donating his babies to the League of Ordinarizing Moneylords.


The enemies of creators
by Mary Madsen, Henderson, NV, USA

The Orphan Works bill could be a devastating blow to artists of all mediums, particularly photographers and illustrators. PPA (Professional Photographers of America) is currently urging that we remain calm and watch how this issue progresses, but we are also uniting for action, should it be needed. Several other professional photographers’ organizations are also mobilizing to monitor the progress of this bill. Unfortunately, the greatest obstacle in stopping this action may be artists themselves. There is a mentality that feels any exposure is good exposure, and some artists actually sit back and allow theft of their work to continue. Considering it free promotion, they can swoop in at a later date and claim copyright, and an instant career. This is not the case.

I work closely with an intellectual copyright attorney to guard my work, both from theft and from unintentional copyright infringement. It is well understood by most artists that intellectual property is anything dreamed up in the intellect of an individual and made tangible. This is the law. But there is more that is needed to prove copyright in a court of law and stimulate the judicial system to act on IP copyright cases. The law states that the instant the thought is made tangible, you own copyright. Okay. Now prove it. The unwritten law of IP copyright protection is to publish the work — this is your proof. This is why web sites for artists are so important, and why putting one’s work in exhibits, competitions, or anything public is critical — it bears witness to copyright and prevents someone from claiming they created the IP first. But there is more.

Trademarks and logos are different from copyright and fall under criminal law. IP copyright falls under the jurisdiction of civil law. Although it is reasonable to expect that we are protected under civil law, the reality is that governments will not finance buildings, judges, employees, and time to reach a verdict that amounts to something like, “Bad, bad, person. You stole that person’s work, don’t ever do it again!” Civil law is about money and due compensation. For that reason, all works of IP need to have a price tag on them. It can be flattering to have one’s work in an exhibit, but don’t count on that as constituting a claim of IP copyright violation, worthy of due compensation, if the work doesn’t display a price. Hang it, price it, or kiss it goodbye.

Digital photography can be the godsend of IP copyright. Most people do not realize that in all Adobe Photoshop photo files there is an IPTC information palette where one can enter a massive amount of information, including copyright. For both photographers and artists photographing their work, the first thing they should do with the image when they open it in Photoshop is go to File and click on File Info. Click on Advanced and enter your copyright and the date, along with keywords, description, name of the writer of the keywords, and fill in as much of the remaining boxes with information as possible. This information stays with the image at all times and is actually part of the digital image. My first step after a shoot is to batch process all of my shots, even the wretched ones, with my copyright. It is against the law for any photo lab to reproduce a digital image with copyright embedded in the IPTC, unless the person requesting the copy is either the holder of the copyright or has a release for printing. It is against the law for a printer to make giclees from a jpg or TIFF file with embedding copyright. I limit all copies of work given to clients on CD to the number of copies that can be made, and do not allow copies to be made after the date I specify as the last date edits were made to the image. I will not allow anyone to make copies of my work if they have been doing their own edits to the work in Photoshop. My name and reputation are at stake. I don’t allow it. How is it possible to create these limits? Easy.

EXIF data. Along with the embedded IPTC on every single image created in Adobe Photoshop is also extensive EXIF data that will tell everything there is to be known about the image, including the serial number of the camera it was taken with to the number of times the shutter of that camera has been opened and closed. It takes expert knowledge to understand all the data, and even more knowledge to change the EXIF data, but it can be changed. Labs and reputable dealers will know EXIF, how to read it, and will respect it. It is a good idea for artists and photographers to at least be familiar with EXIF data, and to make sure the labs and galleries they work with understand it as well.

IP copyright law has always been an area with many shades of gray, and it will always be a battlefield. In the grand scheme of things, IP copyright is a very new concept that is still being tested. The Orphan Works bill will not be the end of copyright as we know it, but we must be aware and work together as a community to protect our work and the work of others. “Open source” marketing must be carefully considered as a marketing option for artists, and whether we like it or not, we have to make friends with the digital age and use all it offers to protect us.

The Orphan Bill is just one area to watch. Another is an organization all artists should know about, and one I will not mention for fear of legal action. If our work is important, we should dig and know what is happening on all fronts. This particular group is headed by a very powerful entrepreneur who created the most unique and successful site on the Internet. His grassroots organization is claiming that all IP is public domain, and that all citizens of the world have the right to free access, and use of, creative works. They support concepts such as file sharing, hacking into bandwidth, and right-click theft. They claim all creative works on the Internet belong to the people because the Internet is public domain. I wrote to you almost two years ago with the HTML code that blocks right click theft, but you chose not to publish that part of my email. Right clicking a thumbnail of an image may not seem to be a threat, but advancements in upsampling software should have us all trembling in our boots. The Internet can prove our copyright, or it can destroy it. Again, the Orphan Works bill may not be our biggest enemy. That enemy could prove to be ourselves.


Benefits for all
by Coulter Watt, Quakertown, PA, USA


“Striped Bass”
oil painting
by Coulter Watt

Your piece on Norman Rockwell touched off a few writers in the clickbacks. And now you’re writing about copyright issues for scholarly purposes, a perfect example of how complicated the copyright issue really is and raises questions. The Twice-Weekly Letter and Clickbacks are a perfect example of benign use. It’s a global sharing of knowledge and experiences — we all benefit richly from it.




‘Miserablism’ on line
by Brian Hendrickson, Indianapolis, IN, USA


“The Big Bad Wolf Was Partially Justified”
acrylic painting
by Brian Hendrickson

I should like to thank Mr. Busang for providing such a definitive example of “miserablism” — the curious notion that only artworks portraying the negative aspects of the human experience have any artistic merit. This may be a somewhat antiquated view considering that images of human suffering are so readily available nowadays with the simple click of a button on a television remote control.

I can respect, also, his disdain for sentimentality. We all certainly have our peculiarities. Mine, for instance, is a revulsion for people who issue blanket statements for what art “is” or “is not.” I find those who have the temerity to specify where I should draw my inspiration for artwork to be insufferably closed-minded and intellectually suspect. Norman Rockwell found inspiration in basic human decency. Picasso, Goya, and countless others often found theirs in basic human depravity. I find mine in the absence of humanity altogether — explorations of trees, rocks, fields and particularly lakes of the sort that Mr. Busang is more than welcome to go jump into.


Toxic waste in people’s minds
by Tatjana Mirkov-Popovicki, Coquitlam, BC, Canada


“Silver Bowl”
acrylic painting
by Tatjana Mirkov-Popovicki

The responses to the Norman Rockwell letter in the clickbacks were quite disturbing — so much toxic waste in people’s minds, quite amazing. What’s with the woman who thinks that NR paintings are preventing her from the freedom of being a bad mother — what was that all about? You know you don’t have to publish stuff that you don’t agree with — just a reminder in case you forgot. Freedom From Want and Freedom From Fear are heartbreaking. I have no idea what those people are talking about when they say that Rockwell only painted an idealistic world of denial. The subtleties tell the story of his heart. Thanks for Parrish and Rockwell. I love them both.


“Freedom from Want”
by Norman Rockwell


“Freedom from Fear”
by Norman Rockwell

(RG note) Thanks, Tatjana. And thanks to the hundreds of people who wrote to tell us to tell certain folks to “get a life.” Actually, in editing these responses, we try to err on the side of giving opposing points of view a decent representation. I figure it’s probably a bad sign when too many people agree with me.





Rugby (created with Corel Painter 9 and Adobe Photoshop)

digital painting
by David Cole, UK


You may be interested to know that artists from every state in the USA, every province in Canada, and at least 105 countries worldwide have visited these pages since January 1, 2006.

That includes Lawrence W. Chamblee who wrote, “There is still room for artists who can move people to the light by attracting them there, lifting out of darkness, and that’s what I think Norman Rockwell was able to do. It works for me in a different way, and maybe as well as ‘sterner stuff.’ Sure feels nicer, and motivates me just as well.”

And also Len Sodenkamp of Boise, Idaho, USA who wrote, “Put a circle with a ‘C’ in it next to your mark. It should stand for creator. Call me an optimist, over the years I have come to my own conclusion that ninety-five percent of humanity holds integrity and honesty proudly in their hearts. The remaining five percent will take what isn’t nailed down. Why is it we are so focused on the five percent?”

And also Slater Tubman of Wolseley, Saskatchewan, Canada who wrote, “Regarding Rockwell, come on folks, lighten up! If your particular situation in life is tough, don’t rain on everyone else’s parade. The man was unique in both art and American history and let’s appreciate what he did, even if we don’t choose to ‘do art’ the way he did.”

And also Joy Cooper of West Virginia, USA who wrote, “I won’t be signing up for a newsletter by Brett Busang. That was a brilliant example of a well-done social commentary that Andrew inserted after his letter.”




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