The illustrators are continuing their assault on orphan works legislation, which still hasn't come up for a full House Judiciary Committee markup. I've said before that the illustrators have a case for concern (see here and here and here). Is their concern strong enough to justify stalling the bill? Are they merely allowing the perfect to be the enemy of the good? Or is there some legislative solution that would address some of their concerns? I argue that last point to be the case, but I don't think the illustrators will agree with me.

Their latest lobbying effort is to point to a letter to Congressman Jim McDermott by an illustrator named Michiko Stehrenberger of Seattle. She created a dramatic illustration of a female she called Blue Girl, only to find a cigarette manufacturer using the image without her authorization in advertising. As you can see here, all they did was flip the image, change the color slightly, and place a camel on the woman's headphones. It's a pretty dramatic case of infringement, and it seems somehow even more distasteful that her image was used to sell cigarettes.

Seems like a clear-cut case, right? Well, it was clear-cut enough that Ms. Stehrenberger was able to get a lawyer to take her case on retainer. She tells McDermott: "After four years of perseverance, this finally allowed me to bring the case before a judge and achieve a resolution."

She then states that if the Orphan Works Act becomes law, she wouldn't have the same luck the next time:

Under the Orphan Works Act, however, the infringer could have asserted a “good faith” orphan works defense and said, in effect: “Go ahead and sue me!” In that event, I would have had to risk upfront out-of-pocket legal fees and court costs in the hopes of establishing the infringer’s bad faith. I would also have had to weigh that risk against the fear that a successful “good faith” defense (whether merited or not) by the infringer would have limited my award to a paltry usage fee – far from enough to cover the nearly $100,000 that the suit would eventually cost me. And I would also have to risk it while knowing that there would be NO LIMIT to the amount of money the infringer could then extract from me in a counterclaim.

I can't support a bill that prevents an illustrator from defending herself from infringement. But it's not entirely clear that's what would happen.

First of all, is the current system working as well as Ms. Stehrenberger would have us believe? It took four years for her to win what seems like a slam-dunk case. That's not really surprising, because the court system isn't set up for individual infringements. What if the Orphan Works Act came with a small-claims proceeding? A US Copyright Office study on that topic is part of the latest proposal.

Let's look at the facts of the case. She states this about the infringement: "Although the infringer knew how to contact me beforehand, they instead chose to use my artwork without my knowledge or permission in a series of poster-sized cigarette advertisements that ran in 16 states and reached an estimated 8 million readers." If the infringer knows who the artist is and how to contact her, this can't ever be considered an orphan works situation. She would have the same legal recourse she has now.

What if the infringer claims it didn't know, that someone had stripped her identifying information off? Under orphan works legislation, the infringer has to prove a diligent search. It's unlikely it could do so, because the odds are a diligent search would have led to the artist, who clearly isn't trying to hide. So she has a strong case, just as she did before the Act. She says a payment under the Orphan Works Act wouldn't cover her legal expenses. That's a yes and no. If a good-faith effort could be proved, it's true the infringer wouldn't have to do more than stop usage and pay a market rate for preexisting use. But would legal costs have run $100,000 in this instance? Not if there were a small-claims process. Also, an infringer not negotiating in good faith on compensation can be stuck with legal fees. And if it turns out the infringement was willful, then there are additional damages that could be claimed.

This example is compelling, but like others that have been raised in recent months it conflates the issue of standard infringement and orphan works. The argument, it seems, is that the existence of an Orphan Works Act will make all works orphans, and will provide legal protection for infringers and even encourage infringement. I still haven't seen an example of this. Any work that could be considered "orphan" under the Orphan Works Act would be considered "orphan" now; the only difference is there's no easy resolution of conflict currently. The illustrators recently acknowledged this argument, but haven't addressed how a small-claims proceeding might undermine their alarm.

As I've said before, illustrators, cartoonists and photographers (many cartoonists and photographers also oppose the bill) are particularly vulnerable to infringement in a digital age. There are some technological tools coming on the market that can help, and there are registries in existence and proposed that can also help, but nothing can change the fact that it's easier to pirate and re-use Blue Girl than it is to pirate and re-use Pirates of the Caribbean: Dead Man's Chest. Ms. Stehrenberger is an artist who deserves to have her work respected; I am in favor of finding ways to do that short of violating international treaty obligations on formalities and other issues. The government can encourage private registries, as the Orphan Works Act does by "blessing" them in a diligent search. It can provide new, affordable legal avenues for disputes so that a well-heeled infringer can't prevail over a cash-strapped artist. But we can't allow opponents of copyright protection to call for radicall gutting of the copyright system because of the continuing problem of orphan works, one universally acknowledged and one anticipated by the US Copyright Office when the US abandoned formalities.

There's no reason orphan works legislation can't empower individual artists through cost-effective and timely proceedings coupled with a clear burden of proof on the alleged infringer.

posted by Patrick Ross @ 12:55 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, Free Culture Movement

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