‘Orphan Works’ in the News

October 1, 2008

How the Orphan Works Act of 2008 Can Affect Your Bottom Line

Orphans are not a subject we would ordinarily cover, except for the word’s importance in copyright law. ‘Orphan’ is the peculiar name assigned to works of illustration, photography, or any art whose original creators or copyright owners have not been found. Under cover of passage of September’s massive financial bailout bill, the lesser known Orphan Works Act of 2008 stalled in the House.

That’s important to many of you. Under current law, creators of works of art own the copyright to that work until they convey those rights. Under the proposed Orphan Works Bill, that protection would be limited or non-existent.

Possible new fees are on the horizon if you want to protect your custom illustrations or photographs.

Artists and photographers would be required to digitize and register each photograph or illustration commissioned by your company with privately owned commercial databases, and those fees will be passed on to you. Failure to register an image makes the image fair game for any person who pulls your image from your Web site or perhaps scans your brochure. They just have to claim they couldn’t find the artist, photographer or copyright owner. Imagine paying an additional $50-$100 fee for every custom image your organization commissions that you want to protect. That can certainly have an impact on your bottom line.

“It’s just a poorly written law,” said Ken Dubrowski, nationally recognized professional illustrator based in Massachusetts and Orphan Works Bill detractor. “If you treasure and value your works of art or photography, you’ll ask your legislator for a rewrite to make it fair.”

Many aspects of the proposed bill are troubling. Proponents will resume their efforts toward passage when Congress reconvenes for a lame-duck session on Nov. 17, after the election.

In the meantime, we’ll keep you posted on future developments.


Jan Hirabayashi founded BroadBased in 1996 and is the company's CEO and lead marketing strategist.