Who Owns John Galt?

(Your © Is About To Expire. Forever.)

Have you heard of the Orphan Works Act? Not many people have, but after Easter break both the House and Senate will be looking at a fast track bill designed to strip the copyright from every work you've ever created. From murals to sculpture to songs to home videos and doodles on Post-It notes, anything you create is about to become fair game for intellectual property theft.

A new version of this bill is currently being hammered out and was originally designed by a cadre of eight law students under the direction of Peter Jaszi, a law professor at American University who believes that all art is communal. His view is one of communist idealism in the strictest Marxist sense.

Perhaps I like the dreamy quality of Photographer X's photos and I try to make mine look that way. Well, she was emulating Photographer Q, who emulated Photographer B who was trying to evoke the paintings of Artist F who in turn learned his technique from Artist O. Under this reasoning, even though I'm creating, I'm creating by benefit of others who have influenced me, so my creation is not mine, but theirs as well, and therefore belongs not just to me but to everyone. Post-war, post-modernist deconstructionism at its very worst.

This bill would force artists and authors to register any intellectual property with as-yet-non-existant private sector companies. When someone comes across one of your works and decides they'd like to use it for profit, they check with the registries and if they do not find your work listed, they will be free to use it as they see fit. The bill stipulates that the infringer must use search to find your registration, but does not state how hard the infringer must look.

Let's say 20 companies start up intellectual property registries. Each charges a fee to register your work. In essence, you have to register with and pay every single company in order to be protected. If not, and an infringer checks five companies that you haven't registered with, he is free to use your work. It doesn't matter that you registered with other companies, only that the infringer didn't find your work at the five or so he searched.

So let's say someone lifts you work and starts selling T-shirts of it. Eventually you find out and say, "Hey, whoah buddy, that's my work! Let's go to court." Under this bill, if you can prove the original work is yours, the infringer will owe you money in an amount that HE sets. If he says he pays fifty bucks for t-shirt designs, that's what the court will order him to pay you. Regardless that he's made $100,000 selling shirts with your work on them. Regardless that the work in question was a one of a kind artwork done for a private collector for which you were paid $10,000. If he pays fifty bucks for t-shirt designs, that's what he owes you. Unless you want to drag him to a higher court. How much money will you have to pay to protect work which was stolen from you?

This bill is being endorsed by some very heavy hitters. Search engines like Google are in favor of it to free up copyrights on books and art in order to deliver more free content to users. Conversely, it is being lobbied by stock agencies such as Getty Images and the Bill Gates owned Corbis Images. (Side note: Getty was recently sold for 2.8 million dollars. Did the artists whose work Getty sells receive any of that money? Why not? Without those images Getty is worthless. Yet Getty is fighting for the right to steal other artists images in order to boost profits.) In fact a former employee of the U.S. Copyright Office is now the head lobbyist for Getty and Corbis working to squeeze the most out of this bill for Bill Gates and Mark Getty. Buying up the Mom-N-Pop stock image services isn't enough for them anymore. They want it all, now, free.

Now if you think this is all contrary to the Bern Convention and the U.S. Copyright Act of 1976, you're correct! One of the 'positives' that this bill supposedly addresses is those poor, poor schoolchildren you hear so much about in the news. You know, the ones that do a book report about Walt Disney and they put a picture of Mickey Mouse on the cover of the report and then Disney sues them for copyright infringement? Excuse me? Disney, however evil you may think they are, has never sued a child over a book report. The 1976 U.S. Copyright Act covers this quite well in the Fair Use section. So there's one argument shot right down the tubes.

As for international copyright law, it is against the Bern Convention for any country to impose registration of intellectual property. The U.S. is skirting this issue with the statement that they are not imposing registration, simply allowing others to freely use intellectual property that is not registered with one of those as-yet-non-existant registries. Can you say sophistry? Can you say bullshit?

One of the final bills lead authors, a former U.S. Copyright Office employee who now works for Microsoft, says that since artists never cared enough to create their own organization for the protection of intellectual property rights, it's about time someone did and that these private sector registries are just what's needed. Really? I was unaware that copyright protection and enforcement was the artists responsibility. Certainly, the artist should be on the lookout for violations, but I was under the impression that our work was safely protected and enforced by the U.S. Copyright Office!

Basically, the Orphan Works Act essentially takes the position that if you do not register your work, then you freely admit that it has no commercial value and should be public property. Brad Holland of the Illustrators Partnership states, (and correctly so, I believe,) that if someone wants to use your work, it indeed has inherent value, ipso facto.

Three years ago in closed session, the Illustrators Partnership was listing it's numerous objections to the bill and the head of the U.S. Copyright office simply replied, and I paraphrase here, "Oh, we think people will basically obey the laws." Is this a great country, or what? Where the hell is Ayn Rand when you need her?

Please visit The Illustrators Partnership and sign up for e-mail updates regarding this issue. It's not yet time to write your congressman or senator, but that time is coming soon. For more info, check out their resources page here.

You can hear Brads interview here.

To find your state and federal reps, go here.