Recently I gave lukewarm support to orphan works legislation in the House, while acknowledging it had the potential to harm small artists. Illustrators are among the most upset at the legislation, and I just received a grassroots e-mail from the Illustrators Partnership:

The Orphan Works bill contains a terrible new provision that gives an infringer exclusive rights to the entirety of an orphaned work if the infringer uses that work in a “derivative work.” A derivative work is one made by incorporating the work of others.

House negotiators have removed the requirement that infringed art be used in a derivative that contains substantial original expression. This means an infringer could now simply crop or desaturate your work, then use it again with complete immunity from prosecution.

In essence, they claim that under current law, any work I create with your copyrighted work cannot be copyrighted by me, at least not the part that was yours. In the orphan works bill, however, if I use your work after failing to find you, your surfacing and asserting copyright later doesn't impact my ability to fully copyright my derivative work. From the illustrators again:

This measure will have far reaching implications. For example, it will undermine your ability to negotiate exclusive rights with clients –particularly buyouts for advertising or institutional clients - because neither party in a business transaction can guarantee exclusivity. It will also let opportunists capture the full rights to existing work. Stockhouses, for example could harvest “orphan” works, modify the work slightly and claim it as their own. These “derivative works” would then become the wholly-owned, fully-protected copyrighted work of the stockhouse.

And free culture advocates could now appropriate orphaned work and embed it with the viral Creative Commons share-alike license. See Orphaned Art and a Copyright Virus.

Howard Berman acknowledged at the subcommittee markup that work still needed to be done to help visual artists. We'll see what comes up for full committee markup, expected to happen in the next month. Chairman Lamar Smith said it would be a modified bill.

At the end of the day, I think it's critically important for orphan works legislation to pass, in part to remove a potential argument against current intellectual property protections. But we need to do it in a way that creates as little harm as possible to artists, and gives them the means to improve their abilities to protect themselves.