In Berne Convention, Copyright, Copyright Act, Orphan Rights, Orphan Works, TRIPS

The Blue Girl infringement letter we published Wednesday has really hit a chord with working artists. It seems everyone understands its implications. We’ve received only one critical response, but since it anticipates the criticism we expect from the bill’s advocates, we think it’s worth addressing:

Argument: The Blue Girl case is “a standard copyright infringement case.” Since the artist’s name was on the promotional piece, she only needed to show the postcard in court to prove her name had been taken off.

Answer: If that was so, why did the case cost her four years and tens of thousands of dollars in legal fees?

Argument: “Because it was willful infringement, this is not a true orphan works case.”

Answer: Of course it’s not. That’s precisely the point.

The facts of the infringement were not self-evident: Michiko might have been able to prove that someone had removed her name and information, but she could not have proved WHO did it. That took four years of discovery.

Under current law, this was an ipso facto infringement case. The only question was who removed the name. Since it was a reasonable bet that discovery would yield an answer, Michiko was able to get a contingency fee lawyer (i.e. the lawyer knew that someone besides the plaintiff would have to pay).

But under Orphan Works law, years of litigation might yield nothing more than that SOME PERSON OR PERSONS UNKNOWN removed the name. So unless the infringer had a sudden Perry Mason Moment (“I’m guilty. I took the name off. Fine me!”), any user would be entitled to the presumption of good faith (“there was no name on the picture when I found it”). This means no practical lawyer would be likely to take the case unless the plaintiff was rich enough to pay for years of litigation, regardless of the outcome.

The problem with this bill is not with how responsible users will avail themselves of true orphaned work — but how bad actors will abuse a law that emasculates the penalties for infringement, inviting – and rewarding – abuse. The existing remedies for infringement are the only effective mechanism the law gives us to protect our work.

— Brad Holland, for the Illustrators’ Partnership

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