I got an email a couple days ago asking me to get angry about The Orphan Works Act of 2008, Bill # H.R.5889, now in Congress. The law, basically, limits damages that can be claimed against people who infringe on copyrighted material because they are unable to locate its owners after a diligent search.
I’m easy to rile, so I got angry. Not at the law, but at the knee-jerk activism of the art community. Ask yourselves, artists, if you are more likely to suffer from having your copyrights ripped off, or to appropriate the work of others, hoping not to get sued. Ever downloaded an image from the web, and used it in an artwork? Did you get permission, pay a license fee? Or were you hoping no one would notice or care?
Say you come across a piece of unattributed content on the web or elsewhere: a photo, a bit of writing, the secret of cold fusion, whatever. After a diligent search, you are unable to identify an author or copyright holder. You can’t ask permission to use the work, because you don’t know who to ask. So you use it anyway. Currently, the copyright holder could come out of the woodwork, years later, and sue you for everything you’ve got. The only way to be truly safe is to use nothing from sources you cannot identify, taking the majority of web content (and a lot of other things as well) off the cultural table. Worse, there’s a chilling effect: a lot of things that could legitimately be used will be rendered useless simply through fear that they might, somewhere, have jealous owners.
Groups against the proposed legislation have penned their objections to the bill at Capitol Advantage, a nifty automated political-action website that makes writing your congresspeople easy. It’s slanted and alarmist, but not incorrect. I suggest that artists read the bill itself; it’s not that long.
Creators are legally allowed to restrict many uses of their works. This is beneficial in that it helps creative people profit from their work, encouraging them to produce more. But this beneficial effect shades imperceptibly into censorship when copyright holders use their rights to suppress re-interpretation, discussion and dialog based on their copyrighted work. The copyright law allows such "fair use", but what’s "fair" is open to interpretation, and it often comes down to the larger pocketbook winning, not through law, but through intimidation. A threat is as good as a legal action that small-time culture-benders can’t afford to fight, let alone win.
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