The Association of Medical Illustrators (AMI) (http://www.ami.org/), an international organization representing highly trained professional medical illustrators and animators, is slamming proposed legislation known as "The Orphan Works Act of 2008" (H.R. 5889/S. 2913), pending in the House and Senate. An "orphan work" is a creative work, visual or otherwise, whose copyright status and ownership cannot be readily found. Proponents want to use works declared "orphans" without infringement liability.
"If this bill passes, it will radically restructure copyright protections currently guaranteed to creators by making it legal for anyone to use, reproduce and change a creator's painting, illustration or photograph -- without permission, fair or appropriate compensation, or proper legal remedy," says Michael Belknap, AMI's president. Currently copyright owners are guaranteed the exclusive right to reproduce their artwork, prepare derivative images from their original creations, and control how and where their work is used. The proposed legislation would subvert copyright protection by allowing anyone to declare a work an "orphan" and use it without infringement liabilities after engaging in a presumptive "diligent" search for the copyright owner. Neither bill defines what constitutes a "diligent" search.
"These bills are a recipe for legal chaos and have numerous large companies expecting to sweep up these 'orphaned' visual materials for free or for minimal payments to the owners and creators," says Bill Westwood, an AMI past president. "The bills will excuse thieves from any significant financial liability for such infringement and even allow them to make minor modifications and copyright the original artwork in their name. This violates the exclusive rights guaranteed to the original creator under copyright law."
In these bills a safe harbor is extended to nonprofits relieving them of any monetary compensation to creators. Because medical illustrators create critically accurate visualizations for nonprofit organizations, universities and research foundations this will exert a special harm on medical education and the advancement of science. AMI believes there should be no loophole for nonprofit educational institutions, and no orphan works exemption for educational use. Fair use already generously covers scholarship. Any other use needs to be licensed according to existing copyright law that protects an artist's exclusive rights, regardless of whether the use is "commercial" or not.
If the bills are enacted, to attempt to keep their works from being declared "orphans" all visual artists must register their works in commercial visual databases or registries. The cost to register hundreds or thousands of illustrations could force many professionals into bankruptcy. Adding to the problem, there is no available visual recognition technology that can guarantee 100 percent accurate image identification. "Orphan Works" legislation would affect millions of visual imagery copyright holders worldwide, including medical illustrators, commercial illustrators, fine artists, graphic artists and photographers. AMI strongly opposes both bills.