Industry Split on Effect of Proposed Copyright Law
Debate hinges on ’orphan works’
Proposed copyright legislation has some in the industry worrying that copyrighted materials, such as textile and jewelry designs, will be made more vulnerable to infringement. Others view the proposed legislation as a victory for the little guys in the apparel industry.
On Jan. 31, the Copyright Office of the Library of Congress submitted a report to the Senate Judiciary Committee recommending “orphan works” legislation. According to the report, “orphan works” are those copyrighted works whose owners may be difficult or impossible to identify and locate by someone who wants to use the works in a manner that requires the permission of the copyright owner.
In the past, the use of such works has been discouraged by the fear of infringement action. The proposed legislation suggests that if after a “reasonably diligent search” an individual is unable to locate a work’s owner, then the individual is free to use the work.
The “orphan works” legislation also seeks to limit remedies if an infringement suit is brought. According to the text, the owner of a work would be able to recover “reasonable compensation for the use of the infringed work,” but not actual damages, statutory damages or attorneys’ fees.
Megan Gray, a Washington, D.C.–based copyright attorney, sees big trouble for the apparel industry if the proposed legislation is made law. “It will have dire economic consequences for everyone from a solo designer who does independent contract work to large textile houses because they can’t enforce their copyright,” she said.
The legislation gives copyright infringers “plausible deniability,” Gray explained. If a copyright owner happens upon an infringement and sues, the defendant will try to claim benefit of the orphan works provision and the damages available for infringement are minimal, she said. “You only get peanuts, which means people will be wary of protecting their designs,” Gray said. And if people aren’t protecting their designs, they won’t be creating new ones, she said.
The language of the proposed legislation is very broad. “This is a big issue that spreads across a lot of different industries. There were no special provisions for any particular type of work,” said Jule Sigall, associate register for policy and international affairs and the primary drafter of the report. The report, which was initiated in January 2005, didn’t spark the interest of the apparel industry until after it was published early this year, he said.
“The reason people [in the apparel industry] aren’t familiar with this issue is because people don’t think their works are orphan works,” Gray said. “In many respects, the copyright office has overlooked the apparel industry. And, unfortunately, the industry has not been active in lobbying on this issue because it didn’t think it applied to them,” she said. “We need to act quickly because the Judiciary Committee is under the mis-impression that the apparel industry has no objection,” Gray said.
The proposed orphan works legislation had its first hearing with the House Judiciary Committee in Washington, D.C., on March 8. Gray encouraged concerned members of the apparel industry to contact their congressional representatives and industry associations to get their voices heard on the hill.
A break for small companies
Greg Weisman, a partner at Los Angeles’ Silver & Freedman and chair of the firm’s Apparel Industry Practice Group, sees the proposed legislation as a rare break for the little guys. “Litigation is prohibitively expensive in California and that has stymied the creative abilities of the apparel industry. For small companies, the specter of some copyright claim later has them petrified. But in the apparel industry, nearly everything has been done before,” he said.
The proposed copyright legislation opens the doors for smaller companies to make use of orphan works and removes the prohibitive cost of litigation. “The risk of paying a reasonable royalty such as 5 to 10 percent promotes the innovative freedom of small companies,” Weisman said.
Textile manufacturers that are worried about their original designs need to rethink their fears, according to Weisman. “Styles are so transient in application that the concept of creating a design that is timeless and will last for 70 to 80 years is nonsense,” he said. In the rare case that a lace, print or embellished design becomes signature—as in the Burberry plaid—then it becomes a trademark and is afforded trademark protection, he said.
“The law, at worst, provides that copyright owners get a fair royalty for their work. In my opinion, it’s a step in the right direction,” Weisman said.
