Mark Simon.

Others have said it couldn't happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. They were wrong!

If you don't register every photo and work of art in government-certified private databases, you are about to give anyone the legal right to infringe on your copyright.

"The Orphan Works Act of 2008" (H.R. 5889) and the "Shawn Bentley Orphan Works Act of 2008" (S.2913) were released to the House of Representatives and the Senate recently. While at first glance the law seems to be a "last resort" in a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.

An "orphan," as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but whose copyright holder can't be found. Actually, this bill makes it easy for searchers to pretend it's hard to find copyright holders!

Registries Will Remove Your Copyright Protection!
We cannot just sit back and let this Orphan Works bill pass! As it is written, if it passes we would have to register all of our creative works in all the upcoming private-sector registries (those certified by the Copyright Office) or risk orphaning all of our work. This means all past, current and future work could be legally used without your permission.

The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new software to match an image being searched with the images that are registered and, if found, will supply the searcher with the artist's name and contact information.

Having online registries to search for copyright owners is great. Using these registries as a basis for legally orphaning a work is terrible.

What makes me think the registries will be used to orphan works of art? Three reasons:

1. Page 2 of the Senate Orphan Bill cites "sources of copyright ownership information reasonably available to users, including private databases."

2. The effective date of this Bill will take effect either (a) on the date at least two private registries are available online or (b) by January 1, 2011, whichever is first. They are tying the bill to when these registries are available online.

3. People who want to use your work for free will only have to perform a search for you using these registries, which will be ineffective at best, to qualify your work of art as orphaned, giving them free use of your art or photo. The private registries will likely be easy and quick, just not very complete.

All someone has to do is search a couple of these registries and, if your work doesn't show as a match (and remember this software isn't perfect, so you may have registered your work and it still won't show up in the results), it may be considered orphaned and can be used for free.

Registry Entries Will Be Limited at Best
The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every sketch, photo or other work of art they have ever produced and register them with every upcoming electronic database. Add to that any studio/artist expenses involved, assistants and assumed registration fees, and it's even less likely much work will make its way into the registries.

Even Famous Artwork Can Be Stolen!
Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.

The Crucifixion © 1979 by artist Gary Lessord. All rights reserved.

Religious painter Gary Lessord created a painting in 1979 called The Crucifixion. According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his The Passion of the Christ.

Lessord's painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book The Many Faces of Christ, featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and, as the only work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.

Under the current copyright laws, if found guilty, Gibson and his production company are liable for the infringement.

If the new Orphan Bill had been in effect, all they would have had to do is search two of the registries and, if the image didn't show up, consider it an orphan and use the work. It wouldn't matter how popular the piece is if it's not registered in the same digital databases used in their search.