~CaribbeanPulse

It seems like a wave of panic is rippling across art web sites about this "Orphan Works" legislation that the U.S. Congress is apparently working on. People think that they are going to lose their rights to all their artwork unless they pay to officially register each piece with a copyright office. They think that this bill will lead to wide-spread, government-sanctioned art theft.

I'm not an expert on U.S. copyright law and I have not done extensive research. But from the research I have done, here's what I think:

Art theft is not legal. It is not going to be legal.

Your works are not going to be used by anyone who wants to use them just because you didn't officially register a copyright on each and every piece.

If this legislation passes, you will only lose your rights to your work if it is considered an "orphan work."
An article from Animation World Magazine [link] claims that an orphaned work is "any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time, or by lack of proper registration." I think this is a better description for "public domain" works than it is for "orphaned" works. They're two different things.
According to the U.S. Copyright Office, an orphaned work is a work where the owner/creator cannot be identified. In order for someone to label your art "orphaned" and use it, they have to prove that they did a diligent search for the owner/creator and could not find you. According to Congress' giant 2006 report on orphan works, even if someone tries to illegitimately use an artist's stuff, claiming it's "orphaned," the artist can re-surface, prove they created the work, and might receive compensation.

I think if you sign your pieces, publicly identify them as yours, and include a real name and contact info, they are unlikely to be identified as "orphan works" and therefore it will not be okay for anyone to "steal" them.

Also, because of the Berne Convention, copyright holders from non-U.S. countries are supposed to have their works protected under the copyright provisions of their own countries in both their own countries and the U.S. This bill is not supposed to change anything passed in the Berne Convention.

Then again, this might all be a moot point. I'm not certain that Congress really IS working on legislation about copyright/orphan works right now. From what I heard, the last thing they worked on having to do with that is the Public Domain Enhancement Act, which apparently died after being referred to a committee in 2006. There are rumors that it's popping up again, but I can't seem to find proof. Any help?

Personally, I don't think this bill is a good idea. I like things better the way they are. But if it does pass, I don't think it's going to necessarily lead to an art theft free-for-all.

Here's what the U.S. Copyright Office has to say:
[link]

Here's the proposed bill itself:
[link]

Here's Congress' 2006 report about Orphan works.
[link]