Orphan works legislation affects creative property rights

NEW YORK, June 2, 2008. In light of the proposed legislation currently before both houses of Congress that would reduce the potential liability for using creative work for which the copyright holder is unknown, AIGA, the professional association for design, seeks amendments that will protect the rights of its members and all professional designers. The organization has observed strong momentum behind this legislation, driven by publishers, media properties and internet content providers, while sensing very strong feelings against it among creative professionals, who consider it a reduction in the protection of their intellectual property rights.

Summary of the Senate bill, as amended

The Shawn Bentley Orphan Works Act of 2008 (S. 2913) limits the remedies in a civil action brought for infringement of copyright in an orphan work, if the infringer meets certain requirements, including proving that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate and identify the copyright owner before using the work, but was unable to locate and identify the owner; and (2) the infringing use of the work provided attribution to the author and owner of the copyright, if known.

The legislation would limit monetary compensation for infringement to reasonable compensation for the use of the infringed work; it prohibits such remuneration if the infringer is a nonprofit educational institution, museum, library, or archive, or a public broadcasting entity and if the infringer proves that: (1) the infringement is performed without any commercial advantage and is primarily educational, religious or charitable in nature; and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement. The bill allows injunctive relief to prevent or restrain infringement, subject to exception and limitation.

In order to facilitate a due diligence search for the owner of the copyright, it directs the Register of Copyrights to: (1) undertake a process to certify that databases are available that facilitate searching for pictorial, graphic and sculptural works protected by copyright; (2) report to the House and Senate judiciary committees on the implementation and effects of certain amendments made by this Act, including any recommendations for legislative changes; and (3) report to those committees on remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief.

How AIGA is actively involved

AIGA is an active participant in the Imagery Alliance, a coalition of 21 organizations, formed in 2006 to advocate and educate for the protection of copyright and related interests. The group's member associations represent more than 300,000 artists and copyright owners.

While AIGA seeks amendments that would impede copyright infringement and strengthen the nature of the due diligence required, the organization recommends that members withhold advocating a specific position on this legislation until such time as the amended legislative language has been determined. However, if the legislation passes, AIGA will seek to work with the Register of Copyrights in developing the database of graphic design that will be used for due diligence searches and will continue to provide professional development tools, including the “Guide to copyright,” to help members to protect their work.

Express your point of view

Members who wish to express their view about the legislation now, in its current form, are encouraged to use the editable templates established by the Illustrators’ Partnership of America, an AIGA partner in the Imagery Alliance. To contact your Senator on Senate bill S. 2913, follow steps for the Senate call to action. To contact your representative on House bill H.R. 5889, proceed to the House call to action.

About AIGA

AIGA, the professional association for design, is the oldest and largest membership association for design professionals engaged in the discipline, practice and culture of designing. AIGA’s mission is to advance designing as a professional craft, strategic business tool and vital cultural force.

Founded in 1914, AIGA is the preeminent professional association for communication designers, broadly defined. In the past decade, designers have increasingly been involved in creating value for clients (whether public or business) through applying design thinking to complex problems, even when the outcomes may be more strategic, multidimensional and conceptual than what most would consider traditional communication design. AIGA now represents more than 22,000 designers of all disciplines through national activities and local programs developed by 60 chapters and 240 student groups.

AIGA supports the interests of professionals, educators and students who are engaged in the process of designing. The association is committed to stimulating thinking about design, demonstrating the value of design and empowering success for designers throughout the arc of their careers.

For further information, please contact:
Steve Rogenstein
Director of marketing and communications
AIGA | the professional association for design
Tel 212 710 3121   Fax 212 807 1799
steve_rogenstein [at] aiga [dot] org