Orphan Works information

Orphan Works

Or, How You May Lose All the Rights to Every Piece of Art You Have Ever Created!

The Shawn Bently Orphan Works Act has been released to Congress. Below you will find more information, articles and interviews so you know what is going on and what you can do about it.

Audio Interview About Orphan Works Act
On April 5th, 2008, I interviewed Brad Holland of the Illustrator's Partnership about the Orphan Works bill and how it affects every artist and photographer in the world.

YOU NEED TO LISTEN TO THIS because you are about to lose your copyright protection. Every one of you needs to stand up and be heard in order to protect what we have all created.

Please forward this information to every creative person and group you know. I give permission for this audio file to be copied and transferred and replayed so that everyone may learn about what is going on.

CLICK HERE to DOWNLOAD the MP3 of this interview. E-mail it to others or put it on your iPod.

IT'S HERE!
The 2008 Orphan Works Act has been released to Congress
Click HERE to download the Senate version of the bill,
S 2913 The Shawn Bentley Orphan Works Act of 2008

Click HERE to download the House version of the bill.
The_Orphan_Works_Act_of_2008.pdf

Orphan Update E-mail Lists
Brad Holland
Illustrator's Partnership
www.IllustratorsPartnership.org
ipa@twcny.rr.com to get on the Orphan Works e-mail list

Register below to receive Orphan Works
information from Mark Simon

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Orphan Info
IPA Orphan Works Resource page for more info:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

Govt. Contacts
Contact your Senators, Representatives, Governors and State Legislators:
http://www.usa.gov/Contact/Elected.shtml

Sample Letter You Can Send
CLICK HERE to download a template (MS Word document) you can customize and fax, mail or e-mail (fax is best) to your Senator, Representative, Governor and State legislator.

Do NOT threaten or curse in any response you send to legislators or supporters of the bill. That will only hurt the cause! Once the bill is back on the floor, we will post information here on when it will be the best time to write letters.

How This Affects Other Artists
Interview with Alex Saviuk, famed Spider-Man comic artist about the Orphan Works bill.
CLICK HERE to download and listen to Alex's interview.

On June 12, 2008, I posted a new article about Congress's response to your letters.
I give permission for this article to be copied, sent and re-printed. Please help us spread the word.

Does Congress Care About Your Creations?
Mark Simon
Artist Advocate

Mark Simon keeps trying to chip away at the Orphan Works Act.

When I found out about the Orphan Works Act I was astounded that anyone in Congress would consider legislation that could so obviously be used against artists and their original creations.

I started helping the Illustrator’s Partnership in getting artists to write letters to Congress asking Senators and Representatives to oppose the bill. (You have written a few yourself right? Every voice counts!) So far artists have sent over 99,000 letters opposing the bill through the system the Illustrator’s Partnership set up (http://capwiz.com/illustratorspartnership/home/ ). That doesn’t even count all the letters sent and calls made to Representatives and Senator’s directly.

Your voices are being heard!

At least they are being heard by some people on the Hill. However, I’m not quite sure what some of our Congressmen are listening to. When artist Marty Kleva called the office of his Representative Tom Udall, NM, Kleva was told “This is a very popular bill.”

Really? Popular? Have you seen the outrage in the online artist communities? Has Udall read any of the tens of thousands of letters sent to Congress opposing this bill?

Congressman Steve Kagen stated in his response to Kathy Glasnap, “This bill has come under considerable scrutiny and criticism from people in the arts community”. This statement completely contradicts that of Udall. At least Kagen is listening.

As you may imagine I have gotten a huge amount of e-mails regarding this issue. By far, most artists understand the problems inherent in this legislation and they oppose the bill. Your letters are working and legislators are starting to listen.

At the end of May I asked a number of artists on my Orphan Works E-Mail List to forward the responses they have received from their Representatives and Senators regarding Orphan Works. I got copied on over 60 responses from Congress which show a combination of support for the Bill, opposition to the Bill and a complete lack of understanding of the issue.

Let’s talk about specifics in these responses from our government officials who are supposed to be supporting our best interests.

Some members of Congress do support our position that the Orphan Works Act is bad for the creative community. I have seen letters of support from the following Congressmen. Let’s give them their fair due and please let them know that you appreciate their continued support in opposing the bill.

Ron Paul (extremely strong opposition to the Orphan Works Act)

Sam Farr

John Olver

Diane Feinstein

Tom Feeney

Diane DeGette

Barbara Mikulski

Florida Representative Tom Feeney, and co-chairman of the Intellectual Property Caucus, says about the bill, “I do have several concerns. This bill provides for a potential haven for those who are seeking to use copyrighted works but are unwilling to undertake a thorough search for the copyright owners.” This is also one of my main concerns and I’m glad Feeney agrees.

Many of the responses from our Senators and Representatives had a common phrase regarding a limitation in civil action remedies if an infringer “documented a reasonably diligent search in good faith.”

This phrase, or a portion of it, was included in responses from Tom Feeney, Jack Reed, Vernon Ehlers, Sherrod Brown, David Wu, Lynn Westmoreland, John Hall, Henry Waxman, Saxby Chambliss, Susan Collins, Mel Martinez, Olympia Snowe and Ric Keller.

It’s rather easy to understand how someone could read that phrase and think that a reasonably diligent search for a copyright holder could be a good thing for artists. One problem, the proposed law DOES NOT ENCOURAGE a reasonably diligent search.

In fact the legislation does the opposite. It makes it easy for someone to do a quick search on a registry and then call a work of art an orphan if is doesn’t show in the registry results. No other searching would need to be done to orphan a work. That’s not a diligent search. IT’S LAZY!

I’ve searched for artists to get the rights to use their work in my books. I know what it can take to find someone and get their permission. Sometimes you can’t find them. You know what I do? I don’t use the work without their permission! My inability to find someone doesn’t give me the right to infringe on their work.

Having a searchable registry to help track down artists is a good idea.

Using any registry as a basis to orphan our creative works IS A TERRIBLE IDEA!

The Orphan Works Act is NOT about grandma’s wedding photos.

Some supporters of the Orphan Works Act, such as Senator Ben Cardin, use the argument that this legislation will help grandma restore her wedding photos if she can’t find the original photographer. Grandma’s photos are not what this bill is about.

As artists we are mostly concerned with unauthorized commercial use of our works. Non-profit use of orphaned works is already protected in our current copyright laws.

Senator Bob Corker states in his letter to artist Tony Beazley “I believe that it is important for people to have access to resources and materials without the unnecessary threat of a lawsuit.” I disagree. The threat of a lawsuit is necessary to protect our work from unauthorized use.

In fact, according to Florida Senator Mel Martinez, “The bill specifies that monetary relief may not be made for damages, costs and attorney’s fees.” In no way is this good for artists.

Senator Saxby Chambliss in his letter to artist Brian Laframboise says “Under this legislation, owners of works would be able to receive compensation for the use of their infringed work.” This is a misleading statement. The legislation actually severely limits our potential compensation from infringers, to the point where it may not be practical to go after infringers at all.

When a law limits the penalty for theft of our work to less than the expense of taking that theif to court, there is very little incentive not to steal our work.

Senator Kay Bailey Hutchison contradicts herself in her written response to Roan Matthews. In the same sentence she says “I believe copyright protection is a foundation of innovation”, in which seems to oppose the legislation, but then she continues to say “copyright law should work to ultimately protect the best interests of consumers.” Copyright law is not about protecting consumers, it’s about protecting the rights of creators!

Don’t let Congress orphan your work! Write letters and call NOW!

Take two minutes and write Congress. Go to http://capwiz.com/illustratorspartnership/home/.

GET ON AN ORPHAN WORKS E-MAIL LIST:
To be notified of the latest information on the Orphan Works bill and how to easily contact your legislators, send an e-mail to ipa@twcny.rr.com and ask to be added to the Orphan Works list.

Don’t Lose The Rights to Your Artistic Creations
Mark Simon
Artist Advocate

Press Release.
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 the legal right for anyone 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’ for 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 the copyright holder can’t be found. Actually, this bill makes it easy for searchers to pretend it’s hard not 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 softwares to match an image to be 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.

One. Page 2 of the Senate Orphan Bill states “sources of copyright ownership information reasonably available to users, including private databases.”

Two. 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.

Three. People who want to use your work for free now 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 these software aren’t perfect, so you may have registered your work and still not have it show up in the results) it may be considered orphaned and they can use it 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 work of art, sketch and photo 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.

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 “Passion of the Christ”.

[Figure 02, The Crucifixion by Gary Lessord. Copyright 1979. All Rights Reserved.]

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 being 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 passes, all they would have had to do is search two of the registries and if the image doesn’t show up, consider it an orphan and use the work. It won’t matter how popular the piece is if Lessord doesn’t register it in the same digital databases used in their search.

The new Orphan Works Act will orphan even internationally known works of art such as Lessord’s.

Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. Current copyright law has allowed him to sue and successfully collect large damages from the infringing companies.

“This has GOT TO STOP,” says McCandlish. “It will only get worse—much worse if the Orphan Works legislation passes.”

[Figure 03, Tomcats by Mark McCandlish. Copyright 1991. All Rights Reserved.]

THERE WILL BE NO PENALTY FOR STEALING!

In the new legislation, McCandlish would not have the same ability to sue for statutory damages. The new law will “limit remedies”, thereby removing the expensive penalty for stealing your work. Sure, you will still be able to sue, but you will be limited to the amount. This only empowers those who want to steal our creative works!

This means the most an infringer would have to pay IS WHAT THE INFRINGER FEELS HE SHOULD HAVE PAID IN THE FIRST PLACE! You, the artist, will no longer be entitled to any monetary recovery from the infringement damage, costs or attorney fees, which would often be more than what they could collect. Any betting man wanting to use your art would take these odds and steal your work.

If you don’t think this applies to you, think again. Have you ever taken a photo that is on the internet? Maybe you have photos on a photo sharing service like Flickr, Shutterfly or Snapfish.

Just imagine one of your photos was used by someone else on their site. That happens all the time, but if there is no commercial benefit to them, it’s no big deal. Right? Wrong!

If a designer finds your photo on someone else’s site (making it harder to find you, the true owner) and you haven’t registered it in the online databases, an unsuccessful search on a certified registry will orphan your photo, allowing its use without your permission. You could end up seeing your photo in a national ad campaign, possibly for a product you don’t want to be associated with.

THEY CAN CHANGE YOUR WORK AND COPYRIGHT IT FOR THEMSELVES!

The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to your work and copyright it under their own name!

Do you want to see what lewd things people can do to your work LEGALLY? You would have no recourse but to watch your creations be altered, sold and potentially ruin the reputation of your work.

Proponents of this Bill say they are protecting the rights of the people to make use of existing creative works if they can’t find the owner. WHAT RIGHTS? Just because you can’t find me, doesn’t give you the right to use my work!

If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner? Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don’t include that information in the first place.

Sure, we can also put digital watermarks on scanned images, but not every piece of art or photograph is only in digital form. Plus, there is an easy work-around to remove digital watermarks as well. (If you don’t know it, I’M not going to tell you!)

You must make yourself heard NOW. This bill must not be allowed to pass!

Any single clause or amendment to a bill can cause an otherwise well-intended law to become devastating to a segment or segments of the population. According to Dan Nichols, who has worked on a number of political campaigns, it can take an average of 7 bills to reverse the total impact of a single bill one it is passed. This means 7 times the effort and money to reverse a bad law - even though it is recognized as a bad law - because there will be many different groups wanting to hold on to the parts of the law that benefit them. It is nearly impossible to completely reverse the effects of a law once it passes. This should make apathy the enemy of anyone who has something to lose by any aspect of a pending bill.

DON’T BE BULLIED INTO GOING ALONG WITH A BAD LAW!

CONTACT YOUR LEGISLATOR:
Take two minutes and send a letter to Congress with just a couple of clicks.
Go to http://capwiz.com/illustratorspartnership/home/.

Or, go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone number, address, e-mail of every U.S. Senator, U.S. Representative, Governor and State Legislator. Please be polite. Threats only work against us artists. We need to make a professional impression to be taken seriously.

Make yourself be heard. Protect your creations. Every voice counts and so does your right to control your own creations. YOU NEED TO WRITE LETTERS NOW!

We only have a few days to make ourselves heard, as the Senate and House will only allow a short time for comments. Call them, send e-mails and fax letters.

If you don’t prove you care about your work, the Congressmen and Senators who WORK FOR US won’t care either. Show them you care!

GET ON AN ORPHAN WORKS E-MAIL LIST:
To be notified of the latest information on the Orphan Works bill and how to easily contact your legislators, send an e-mail to ipa@twcny.rr.com and ask to be added to the Orphan Works list.

AUDIO INTERVIEW LINK:
Brad Holland of the Illustrator’s Partnership was interviewed, prior to the release of the 2008 Orphan Works Act, regarding the bill and what it means to us as artists. Go online to http://www.SellYourTvConceptNow.com/orphan.html to listen and learn more about how you may lose ownership of all your art and photos. This article and the recorded interview are available for anyone to use in any print or on any website. Please forward this information to every person and group you know so we can work together and protect our creations and livelihoods.

Mark Simon is an award-winning animation producer/director and speaker. He speaks around the world on subjects about art, animation and tv production. His copyrighted companies may be found online at www.SellYourTvConceptNow.com and www.Storyboards-East.com. He may be reached at marksimonbooks@yahoo.com.

This article is free to be copied and re-distributed and posted, in its entirety.

Figures attached:
Figure 02, The Crucifixion by Gary Lessord. Copyright 1979. All Rights Reserved.
Figure 03, Tomcats by Mark McCandlish. Copyright 1991. All Rights Reserved.

CLICK HERE to download the Word file of the article above.

Previous Articles
Below is the original Orphan Works warning article as a PDF file and as a Word file. Below my signature is the entire text of the original article or you can download a PDF or Word file version below.

I give permission for these articles to be copied, sent and re-printed in their entirety. Please help us spread the word.

Don’t Lose The Rights to Your Artistic Creations - May 2008

CLICK HERE to download the MS Word article about the Orphan Works Act.

Warning Article of Upcoming Bill - April 2008
The original article below may also be found on AWN.com.

CLICK HERE to download the PDF article warning about the upcoming bill.

CLICK HERE to download the MS Word article warning about the upcoming bill.

Please make yourself be heard and protect your own creations. This bill can't be defeated if we sit quietly in our home studios.

SUPPORT/RESEARCH/REBUTTALS
There are a few blogs out there who think I'm crazy and have not done the research. What I've seen is they haven't even fully read my article, so research this yourself and make an intelligent decision. See if others want you to learn more.

Also, be cautious of those who resort to name-calling when they dispute something. They often have no other way to attack. Some blogs have written that there is no Bill on the Hill. The bill has been written and is due out at any time.

I'll be posting more research here over the weeks, but you can go to www.IllustratorsPartnership.org to learn more.

Below is a letter I got from Brad Holland of the Illustrator's Partnership further explaining some of the questions we've received and countering the myth that there is no up-coming Orphan Works bill.

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: No Myth

We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.

How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”

Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.

A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators' Partnership testified against it in both the House and Senate. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203

Q: So if the bill is dead, why warn everybody about it now?

A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:

“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...

“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008

Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?

A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:

“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/

Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?

A: To quote from the Copyright Clearance Center:

“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/

Since that would give us only a month to notify artists, we decided to start now.

Q: Do we have any direct corroboration for these press reports?

A: Since the last bill died, we’ve met with:

- Chairman Berman

- Attorneys from the Copyright Office

- Representatives of the House and Senate Subcommittees

- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)

Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?

A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf

And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?

Carson: Copyright owners will have to register their images with private registries.

Holland: But what if I exercise my exclusive right of copyright and choose not to register?

Carson: If you want to go ahead and create an orphan work, be my guest!

- From my notes of the meeting

This exchange suggests that if Copyright Office proposals become law:

- Unregistered work will be considered a potential orphan from the moment you create it.

- In the U.S., copyright will no longer be the exclusive right of the copyright holder.

Q: What does it mean to say your copyright is an “exclusive right”?

A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”

http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview

Q: Why does this exclusive right matter?

A: Two big reasons:

- Creative control and ownership: No one can use or change your work without your permission.

- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.

Q: So how would the Orphan Works proposals endanger that right?

A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.

Q: So?

A: So:

- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore

- You would never again be able to guarantee a client an exclusive right to license your work. This means

- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.

Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.

A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.

“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf

Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.

A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.

Q: How would it orphan “any work by any artist, living or dead”?

A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.

“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203

Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.

A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.

Q: Why registries?

A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”

Q: And the problem with that is?

A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.

Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.

A: Another Pandora’s Box because:

- Infringements can occur anytime anywhere in the world; therefore

- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.

- This would be an impossible task - but

- Even if you did find an infringement, you’d still have to

- Locate the infringer and get him to respond; and

- While the infringer would only have to make a “reasonably diligent search” to find you,

-You would have to make an absolutely successful search to find him.

- Then, if you were able to track him down and get him to respond, you’d have to

- Settle for whatever he was willing or able to pay you; or

- Take him to Federal Court; but remember

- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,

- You’d get no more than what he was willing or able to pay you in the first place; but

-You’d be out-of-pocket for legal expenses; and

- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.

Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?

A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:

“Under current law, infringement cases follow two scenarios:

“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.

“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.

“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”

Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:

“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf

A: Maybe so, but under this bill

-You would never have certainty because you’d never know if, when or where your work has been infringed.

- Yet the infringer would be guaranteed the kind of certainty the law would deny you.

Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report

A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:

1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:



Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” http://www.law.cornell.edu/treaties/berne/5.html

2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.

3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.

4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.

5. There is no Copyright Bureau of Investigation; no Copyright Police Force.

6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.

7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So

8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.

9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because

10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.

11. This is a powerful incentive for a thief not to risk stealing our work.

12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.

Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.

The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.

Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:

Carson: Copyright owners will have to register their images with private registries.

Holland: But what if I exercise my exclusive right of copyright and choose not to register?

Carson: If you want to go ahead and create an orphan work, be my guest!

This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.

In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:

“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf

It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:

“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” http://www.copyright.gov/orphan/orphan-report.pdf

Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1

This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?

The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:

"If you find a creative work, you may not know who created it, but you know you didn’t.”

Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.

- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership

The author has given his permission to post or forward this article in its entirety to any interested party.

Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly www.newyorkartworld.com/commentary/holland.html “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law weblog.ipcentral.info/holland_ColumbiaLaw.pdf

Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.

For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

I also just received (April 17th, 2008) this e-mail from the ASMP:

Thank you for your passionate and informative article. You may be aware of ASMP's efforts on this subject. If not you can review what ASMP's council Victor Perlman has to say:

The last public statement from ASMP is on our website at http://www.asmp.org/news/spec2008/orphan_update.php

A lot has happened since then. I expect a bill to be introduced within the next week or two that will incorporate most of the changes that we have been negotiating for.

Hal Gage

ASMP/Alaska member

Photographer/Graphic Designer

The ASMP site states: "It has become clear is that some Orphan Works law is likely to be passed sooner or later. Key members of the House and Senate want it; significant user groups such as museums, academic institutions and publishers want it; and the general public wants it."

Do you really need further proof that this Bill is pending and Congress intends to pass it?

YOUR SUPPORT
I am getting great e-mails from around the world, thank you. You are not alone in this fight, but every voice and every letter and e-mail count. Even those of you from outside the U.S. have a vested interested in this.

Yes, the changes here will affect you.

You may want to call or petition your representatives and ask them to pressure their U.S. counterparts as the U.S. laws will affect your income. International pressure will only help.

Louis from Kansas adds this information:

"Thanks for the heads up - also, are you familiar with the Berne Convention? It may give those wanting to make this bill pass pause for second thought. Other countries will not be bound to honor US Copyright if the US violates the Berne Convention (which this bill does on so many levels). Info on the convention can be found through WIPO: World Intellectual Property Organization."

What Else Can You Do?
Contact your local papers and send them this article. I give you permission to do it. Local papers like to write local stories. When you tell them about it, make it personal. Allow them to run samples of your art with the article. (It then becomes PR for you and they want great art in their stories. It's a win-win) Tell them how this bill will affect you and your business and my article supports your argument.

You can also call your local TV station news desk and suggest this as a story and that they can use your art. I will be glad to be interviewed with you if you like.

Call the radio stations in your area. They look for local stories too. Make it personal and they will pay attention. Again, I will be happy to be interviewed in a conference call with you if you like.

Good luck to us all.

Mark Simon
The Artist Advocate
marksimonbooks@yahoo.com

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