Issue #145  7/1/2008
Editorial: Orphan Work and Copyright Laws

By Alex Novak

The patchwork quilt of ill-thought-out copyright laws has made it a nightmare and a virtual impossibility to create any kind of inclusive new history of photography or art without the threat of a massive lawsuit, which has occasionally been used in a fashion akin to blackmail.

While I have great sympathy for artists' concerns over loss of copyright, I do not see how those concerns could not be met under the new proposals before the U.S. Congress. To leave copyright law as is would not address the serious concerns of publishers, institutions, curators, author/editors and scholars. It would do a disservice to continuing research and scholarship.

Contrary to Frank Stella's editorial on the subject in the Art Newspaper and other comments on the web, any major living artist, including Stella, would still have to approve any such work. To not do so would be a clear violation of the law. Any publisher/author that did recognize the need to contact a name that one could simply "Google" online and didn't follow through would be punished severely under the proposed law. What the law would do would be to prevent some third-cousin who now is the "repository" of a more obscure artist's estate from suing publishers and author/editors who used an image after trying repeatedly to find out who owned copyright and failing.

As the publisher of an email newsletter and a major website on photography collecting, I received dozens of emails each month from editors, curators and publishers asking who controls the copyright of an artist. I think one rather simple solution is a basic database that is run by the U.S. Copyright Office that lists artists by name, media and who is the current holder of their copyrights and how to contact these copyright holders. This would not require massive amounts of funding and could even recoup the little funding necessary by minor charges for access to such a database, which could then be used as a defense in any copyright cases. The rather light burden of listing with such a national (or even international) database should fall on the copyright holder, as it used to. If the work is not identified any where by artist, then it should rightly fall into the public domain. But the new law doesn't even say that. It merely says that the artist would be entitled "only" to their normal charges for its use, if due-diligence was used by the publisher. In other words, the publisher isn't off the hook, just that they could not be held up for blackmail.

Let's work together to deal with ALL the real issues here on both sides. Copyright law is not some windfall way for artists to win the lottery by suing publishers when those publishers have made an honest attempt at finding the copyright holder and failed. At the same time, I think the law should be clear as to what specific actions a publisher should take to ascertain who the copyright holder is in order to receive its protection. Publishers should not be allowed to simply ignore copyright.

There are easy solutions to these problems if the participants are truly trying to resolve them.