Wednesday, October 15, 2008

Sowing the seeds of hate...

The McCain/Palin campaign have continued the downward trend in politics, first started with Lee Atwater and endorsed by Carl Rove by using tactics of hate and fear. Now audience members scream out "kill" and "terrorist" from these events easily and without any reserve.

Thursday, October 9, 2008



I was sent this by illustrator Andrea Mistretta a working illustrator since 1979 ( concerning the Graphic Artist's Guilds support for the Orphan Works bill. Several artists have expressed a similar frustration, so I am posting this letter on my blog and asking artists to copy it and do the same, in the attempt to raise awareness.

Ken Dubrowski

from Andrea Mistretta, Illustrator, Designer, Licensor, Small Business since 1979

Dear Mr. Schmelzer,

It has been remarkable to watch the Graphic Artist Guild steadily support and push a copyright bill that will devastate artists around the world, and now read that you disparage artists that fight to prevent the loss of exclusive rights and irreparable harm this law will cause. Now, the Graphic Artist Guild has earned the shameful distinction of being publicly praised as "enlightened' by Gigi Sohn of Public Knowledge, the Washington D.C. public policy maker and Orphan Works lobbyist that is committed to a 6 point plan to dismantle creator rights.

On October 6, 2008 Gigi Sohn wrote:
"At the same time, the more enlightened of those artists saw that the world around them was changing and that it was perhaps time to take matters into their own hands to ensure that their works wouldn’t become orphaned.

Here’s what the President, Mr. Schmelzer, of the Graphic Artists’ Guild had to say on that point:
'I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.

See Fullpost:

Mr. Schmelzer, I have been a sole proprietor, small business entity since 1979. I am one who has diligently registered my copyrights and spent thousands of dollars and hours over the years doing so. I already protect and manage my copyrights, responsibly negotiate contracts, uphold best business practices and understand the market.

My name is Andrea Mistretta. As a licensor of my art, the clients I serve have the security of knowing they are protected through the indemnity clauses in my contracts. My visual example in the Small Business Administration’s Economic Impact Study of Orphan Works prepared in September of 2008 is an example how my working art was“ORPHANED” by a “USER” and sold to one of the largest image banks in the world, and sold again for a fraction of its value to an agency, then sold again to my client turning me into my own competitor while all those in the chain of infringements “copyrighted” my artwork and made money while I, the originating artist received no compensation. My attorney knew he had the support of my certification of copyright to work toward justice and settlement on my behalf. Without copyright he could not have enforced my rights, and I would be out of business. There would be one less independent original thinker and artist in this country.

Under the Orphan Works law that the Graphic Artist Guild and Public Knowledge support, even with my registered copyright I would not have the power to fairly negotiate with the giant corporate infringer who cynically stole my rights. I would not be able to stop the continuing infringement. I would not be able to enforce the exclusive rights I had contractually guaranteed to my client. I would have been denied all legal fees, court costs, and damages to enforce my copyright.

Does the Graphic Artist Guild really believe this law will not "have a dramatic influence on how we do business?"

If this is the new business model Gigi Sohn refers to, there will only be users, and no artist originators. My example is not an anomaly but a harbinger of what is to come if “Orphan Works” should pass.

I believed that the U.S. Copyright Office has been the registry institution living artist generations have paid into to register their works. U.S. Copyright law provided artists the necessary protection of common law copyright law as well as statutory copyright for registered work. Now this institution has turned its back on creators.

I believe there is a place for true Orphan Works in a well defined bill. This Orphan Works bill is nothing more than a license for “USERS” to take art at will.

To change copyright law to the Orphan Works language prior to this writing, is to destroy a business model and bastion of creative thinkers to produce fresh new works that support a delicate “eco-system” – the economy system that starts with the small businesses that support the larger business in this country and abroad.


Andrea Mistretta

Friday, October 3, 2008

House trying to get Orphan Works on agenda NOW!

We are asking everyone who can to not only contact their Congressperson but
to also contact the House Leadership and key Members of the House Judiciary

THIS needs to be done NOW as they are trying to get Orphan Works on the
agenda for this morning.

This is very important as we need to make sure they keep the Orphan Works
Legislation HR 5889 and S 2913 off the House Calendar and from being
released from the Judiciary Committee.


WHAT YOU NEED TO DO NOW and get others to do across the country

We need to get to Speaker of the House Nancy Pelosi and House Majority
Leader Steny Hoyer and ask them NOT to allow H.R. 5889 to go on the

We also need to get to 4 critical members of the House Judiciary
Committee and tell them NOT to abandon their version of the bill and
accept the Senate version.


If you have trouble getting through on their individual lines, you can
also CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard
Operator "I would like to leave a message for Congressperson __________
that I oppose the Orphan Works Act." They will switch you through to
the lawmaker's office and often take a message which also gets passed on
to the lawmaker. Once you're put through give the same message.

There are two letters at the end of this email that you can use/adopt:

CONTACT INFO TO USE FOR LETTER #1 FOR The House leadershipt Speaker Pelosi
and Majority Leader Hoyer:

Rep. Nancy Pelosi

Phone: (202) 225 4965 Fax (202) 225-8259
Phone: (415) 556-4862 (San Francisco office)

Rep. Steny Hoyer

Phone: (202) 225 4131
Fax (202) 225-4300
Phone: (301) 474-0119
(Greenbelt office)

Phone: (301-843-1577 (Waldorf office)

CONTACT INFO TO USE FOR LETTER #2 FOR key members of the Judiciary

Chairman Rep. John Conyers, Jr.

Phone: (202) 225-5126 Fax: (202) 225-0072
Phone: (313) 961-5670 Fax: (313) 226-2085

Rep. William Delahunt

Phone (202) 225 3111 Fax (202) 225-5658
Phone: (617) 770-3700 Fax: (617) 770-2984

Rep. Jerrold Nadler

Phone: (202) 225-5635 Fax: (202) 225-6923
Phone: (212) 367-7350 Fax: (212) 367-7356

Rep. Howard Berman

Phone: (202) 225-4695 Fax: (202) 225-3196

Phone: (818) 994-7200 Fax: (818) 994-1050

House moving on Orphan Works bill Now.




Phone, fax, email these Congressman immediately

DELAHUNT Phone (202) 225 3111 Fax (202) 225-5658
Phone: (617) 770-3700 Fax: (617) 770-2984

CONYERS Phone: (202) 225-5126 Fax: (202) 225-0072
Phone: (313) 961-5670 Fax: (313) 226-2085

NADLER Phone: (202) 225-5635 Fax: (202) 225-6923
Phone: (212) 367-7350 Fax: (212) 367-7356

BERMAN Phone: (202) 225-4695 Fax: (202) 225-3196
Phone: (818) 994-7200 Fax: (818) 994-1050


We've been getting assurances all day that the bill was "dead for this year."




Thursday, October 2, 2008

Homer Simpson must be from Florida

From the Huffington Post website....

Wednesday, October 1, 2008

Orphan Works NOT Dead!

Blogs are stating the Orphan Works bill is dead.
This is not true.

The House bill is dead. Which means the legislation is dangerously close to passing.

Senators Orrin Hatch (R) and Senator Patrick Leahy (D) along with Congressman Howard Berman (D) vowed to pass Orphan Works this year. The Orphan Works bill has passed the Senate. The House has already agreed they would be fine taking up the Senate Bill as a substitution for the House Bill.

There is a high probability the House may pass the legislation tomorrow when the House is in session again.

The House will probably be operating under suspension rules again, meaning they don't have to follow the normal protocols. No one is sure how long the House will stay in session. It may go through the weekend, depending on how long it takes for them to negotiate and pass a bailout rescue.

It is believed that the Orphan Works bill is in play anytime in the House is in session.

They may also come back for a lame-duck session in November after the election.

The bill is not dead and artists need to be aware this is not over yet.

Due to the bailout bill, e-mails are blocked in some offices because they've been overwhelmed with angry constituents about the economy. Faxes are jammed. Many artists have said that they can not get through the Washington phone lines due to the large volume of calls.

Artists are trying the representatives home offices in order to get through.

Remember, every one of your Congressman is standing for re-election and it is important to remind them of that point as you call them.

The bill is not dead.

Friday, September 26, 2008

Artists' Organizations Unite against Hot-lined Orphan Works Bill

The Orphan Works bill is being Hotlined and with 70 organizations opposing a bill only a handful of organizations support action is needed to be sure the majority is heard. Take a good look at the mess happening on Wall Strett and ask yourself who will bail out artists if this goes through? Artists need to speak out against this projected revenue opportunity for others.





To find your Senators' phone numbers go to the Illustrators' Partnership Orphan Works site:

At the top of the home page, click on "Elected Officials"
You'll find a US map:
Click on your state,
Then "Senators,"
Then click on each Senator's name,
Then click "Contact."
This will give you their phone and fax numbers.

Please phone and fax them both immediately.

-Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership


Over 70 organizations are united in opposing this bill in its current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

The Capwiz site is open to professional creators and any member of the image-making public. Sample letters have been provided. International artists will find a special link, with a sample letter and instructions as to whom to write.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.

Please post or forward this message in its entirety to any interested party.

Thursday, September 25, 2008

Orphan Works: Risking Our Nation’s Copyright Wealth

With some organizations like The Graphic Artist's Guild emailing artists that they support the Orphan Works bill over 70 organizations have a much different opinion. If you have not read this following email please do since it asks some very important and not yet answered questions.
Also if you have not seen this blog link below please check it out. It looks into ASMP, agendas and issues concerning Orphan Works. Remember that GAG has asked that ASMP speak to congress on behalf of all artists.

Blog Link:

TUESDAY, SEPTEMBER 23, 2008 From The Illustrators' Partnership of America

Orphan Works: Risking Our Nation’s Copyright Wealth

Is it wise to concentrate our nations’ copyright wealth in the hands of a few corporate databases? With the meltdown on Wall Street, this might be a good time to ask Congress that question.

The Orphan Works bill would pressure copyright holders to subsidize the start ups of giant commercial databases. The contents of these databases would be more valuable than secure banking information. Yet who can watch the ongoing failure of investment banks that were “too big to fail’ without asking why government should want to create these privately owned image banks on the backs of small business owners who neither want nor need them. Here are some of the questions we’ve raised before about this bad legislative scheme:

• Who’s to be trusted with these databases?
• Who’s to manage them and in whose best interests?
• What happens when a database is hacked?
• What happens when one fails?
• What happens when one is acquired?
• What happens when the terms of service are changed?
• What happens when registration fees become prohibitive?
• What happens when maintenance fees are piled on?
• What happens when exorbitant commissions are imposed?
• What happens to artists who can’t afford to register?
• What happens when registered artists can’t afford to maintain their registrations?
• Will artists have to register their immense bodies of work in competing registries?
• What happens to your business when your clients start calling the databases, not you, to clear rights to your work?
• Why should small business owners be forced to entrust their business information to outside business interests?

In an excellent statement prepared for the Small Business Roundtable, August 8, 2008, David Rhodes, President of the School of Visual Arts said this:

“[S]ince the expense of registering works [with these for-profit databases] will be born by the creative community, the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized.”

Sound familiar? As we watch CEOs with Golden Parachutes bail out of investment banks and the government saddles taxpayers with the financial burden of propping them up, we should remind Congress that the true definition of capitalism is not a lot of big businesses trying to gobble each other up or maximize profits by cutting corners. True capitalism is a lot of small business owners taking responsibility for their own decisions and accepting responsibility for their own failures. As David Rhodes went on to say:

“Copyright protection may have impeded the creation of ever-larger image banks, but that is not a problem - that is the purpose of Copyright. In short there is no problem that this legislation will fix. Therefore, prudence dictates that nothing be done.”

– Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Sunday, September 14, 2008

Orphan Works: Why Bet Against Ourselves?

As some artists have said, they have received an email from the Graphic Artist's Guild (GAG) explaining their support for the House version of the Orphan Works bill. Many have asked the Illustrators' Partnership to reply and the following post below details each line of the email sent from GAG.

I seriously believe artists need to read and forward this post to others right away.


Orphan Works: Why Bet Against Ourselves?

Several artists have asked the Illustrators’ Partnership to respond to a recent letter from the Graphic Artists Guild in which GAG gave their reasons for supporting the House version of the Orphan Works Bill. GAG’s statements are quoted verbatim. IPA responses follow.

GAG: This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law. But that’s not the reality.

Response: Artists have no way of knowing what GAG considers “the best possible outcome for this legislation” because their lobbyist has asserted attorney client privilege, saying she can’t disclose “sensitive stuff.” However, some facts are on the public record:
In 2005, 42 groups signed the Orphan Works opposition paper submitted by the Illustrators’ Partnership to the Copyright Office.
GAG was not one of those 42 groups.
GAG filed their own paper, endorsing the bill’s “legislative blueprint.”
According to mandatory disclosures filed with Congress, GAG has paid their lobbyist $130,000 to support the House version of the bill.

GAG: The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.

Response: Since when does “getting real” mean artists have to sit still for being robbed? And since when does treating art as a business mean making excuses for theft? Do you have to be “put out of business” before you react to harmful legislation? Over 60 groups agree that this bill violates international copyright law, undermines artists’ rights and devalues their work. If that’s “a scare,” it’s a real one.

GAG: Orphan Works will not go away, because too many stakeholders are behind it.

Response: Orphan Works legislation doesn’t need to “go away.” It needs to be fixed. Make it a real orphan works bill. As for the special interests behind this one, they’re not “stakeholders.” They’re opportunists. They want to cut themselves in on our markets, and they’ve drafted a bill that will let them. It’ll be the stockhouse story all over again – only this time, you’ll be penalized if you don’t give your work to these so-called “databases.” Who are the real stakeholders in this fight? We are - and we shouldn’t succumb to Stockholm Syndrome and embrace the logic of the bill’s backers.

GAG: Delaying passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version.

Response: No, opposing it in a principled manner and explaining to lawmakers why it’s bad gives us a chance to get a better version in the next Congress. Telling you to take a bad bill because the next one might be worse is like telling you to cop a plea to a crime when you know you’re not guilty.

GAG: By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues.

Response: “Negotiating realistically” doesn’t mean capitulation. It means proposing serious amendments, as IPA did July 11: As for having a “seat at the table,” what good does it do you if you don’t use it? If you give up the goal of protecting your rights to become part of the process, there’s a good chance you’ve become part of the problem.

GAG: For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle over Orphan Works.

Response: If the rights to your creative work aren’t worth fighting for, what is? Protecting your rights is always a “gamble.” But why bet against yourself? As for that “position of respect” that “government circles” allegedly show us, If this bill is an example of it, maybe we should aim for the respect of being treated as worthy opponents.

GAG: The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get.

Response: It’s true that this bill is now so convoluted you’ll need a lawyer to explain it to you. That’s a big change from the current law, which protects your work by making it your exclusive property. This bill would force you to take active steps - like registering your work with a commercial database - not to actually protect it (because the database won't protect it) – but merely to preserve your right to sue an infringer in federal court.

GAG: Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper, gift wrap, shower curtains, etc., from being covered under the legislation.

Response: It’s not clear why artists, writers, photographers, songwriters and others should be grateful that “wall paper, gift wraps, shower curtains, etc.” have been exempted. Is art on coffee mugs more valuable than medical illustrations, news photos, political cartoons, book illustrations?

The textile industry asked for an exemption only for themselves. They condemned the bill, saying it would do great damage. But as soon as they got the exemption, they endorsed it! It’s easy to see why they wanted to be cut out - it’s a lousy bill. But once they got out, why try to inflict the damage on others? Was there a quid-pro-quo? Did Congress force them to endorse the bill in return for exempting them? And if you’re the party that brokered a deal like that, why would you want to take credit for it? If this bill is so bad that manufacturers have to be spared, how does anyone justify telling artists to just “get real” and take it as an object lesson?

GAG: The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work.

Response: First, let’s translate “Notice of Use” into plain English. It means “Notice of Intent to Infringe.” An infringer would file his name and a description of the so-called orphan with an archive. As currently written, this would be a Dark Archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless a.) you discover you’ve been infringed; b.) you pay a filing fee and sue the infringer in federal court and c.) the infringer asserts an Orphan Works defense. Only then can you file a request to see if your work is in the Dark Archive. In other words, the Notice of Use is of no probative value to you at all, unless by sheer luck, you find out that you’ve been infringed and feel like risking a lawsuit. As for making the Notice public, what does that mean? It means you’d have to start each day by reading through hundreds of thousands of text descriptions of infringed works to see if any of the so-called orphans sound like pictures of yours.

GAG: The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.

Response: To repeat: over 60 creators organizations oppose BOTH bills.

GAG:I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues.

Response: If it’s not going to have “a dramatic influence on how we do business,” then why should it wake anyone up? In fact, if this bill passes, in the United States, your work can be used “legally” without your knowledge or consent. We think that’s pretty “dramatic” and it could have a dramatic effect on your business – whether you’ve “awakened” or not.

GAG: If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.

Response: We don’t think this is a time to lecture artists about business practices. No person or group can stop individuals from making poor business decisions. But letting government pass bad laws that will affect everyone – good business people and poor ones - is another matter. How many other businesses would sit back and surrender to a law that undermined their fundamental property rights? Dry cleaners or real estate brokers wouldn’t stand for it. Why should we? There’s no point in being an artists rights organization if you won’t defend artists’ rights.

GAG: Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last.

Response: We don’t see any way an “artists rights group” can build a “strong and vibrant industry” out of this bill, unless they plan to become one of the commercial databases this bill would set up. Orphan Works is the wedge issue of the anti-copyright lobby. If it’s successful, they’ll use it to widen the breach. Unless artists stand up for their own rights now - while they still have them - having a seat at the Orphan Works table won’t give anybody any clout for getting those rights back later.

GAG: We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.

Response: “Developing better business practices and standards” is always a good idea, but used in the context of this bill, the term is code for something else. The Orphan Works Act would set up gatekeepers for every industry. The gatekeepers would get to draw up the checklist of things infringers would have to check off before they infringed your work. Of course, the checklist will be presented to artists as an obstacle course for infringers - but in fact, it’ll be an obstacle course for YOU. Because it means you’ll have to take certain specific steps to preserve your right to sue infringers, and any clerical failure on your part, any oversight, will void your options.

There may be valid reasons for developing practices and standards for using the work of artists who have died or abandoned their copyrights; that would be a true orphaned work policy. But to warn working artists that they have to submit to new bureaucratic business practices so that potential infringers can freely use their unidentified works is a fundamental embrace of the anti-copyright agenda. That’s the truth and it should be understood as such.

Please feel free to forward these responses to any interested party.

For ongoing developments, go to the Illustrators’ Partnership Orphan Works blog:

Take Action: Don't Let Congress Orphan Our Work
E-mail your Senators and Representatives with one click. Go to:


Friday, September 5, 2008

Where the hell is Matt?

This is a wonderful video from a website called ( that if after you watch it you don't smile and feel just a little better about yourself... well you must be an old man.

Thursday, August 21, 2008

Editorial Illustration on torture

The above image is a promotional piece I am sending out this past month on the issue of torture and is of a different painting style that I have done in the past.

LBA Financial Website Illustration

LBA Financial is using one of my illustrations for their website.
Art Directed by Carolyn Bell Audije and Jan Korb for the excellent design studio Broadbased Communications,
the site has interactive features linking from parts of my illustrations.

Visit the site to get an idea how it works.

Tuesday, August 19, 2008

Warner Brothers Boycott

My daughters have begun a letter writing campaign to their friends, in protest of Warner Brothers decision to change the date of the Harry Potter movie in order to make more money by delaying the movie until the summer. I have agreed to post this on my blog. Here are their letters and posts.

To all Harry Potter fans,

My name is Sara Dubrowski and as many of you know the Harry Potter and the Half Blood Prince is coming out this year.
As many of you might not know, the studio that owns Harry Potter "Warner Brothers" has decided to change the release date of the movie from this November to next May, in order to make more money.

This has made most fans like myself extremely unhappy and angry.

What I am trying to do, is get enough people to boycott any Warner Brothers movie that is about to be released from now till until after the first week of the Harry Potter movie as well as
letting Warner Brothers know we will boycott the first week of the new movie's release. Since Warner Brothers is concerned about making more movie by moving the film to a summer release by letting them know we will stay home the first week might make them change their minds and return the movie to it's original date.

Now all you have to do is send this letter to all your friends (including me) you can forward it, and put your own complaint letter to Warner Brothers at the top.
Send this around to as many people as possible and if you want to write your own letter here is the address for Warner Brothers.

Warner Bros. Studios
c/o Alan Horn
4000 Warner Blvd
Burbank CA 91522

Thank you!
Sara Dubrowski

Letter two:

I am a huge Harry Potter fan.
But recently I heard that you are changing the date from November to next May.
This is a huge mistake.

You have every right to do whatever you want with your movie.
But you have angered many of us "Harry Potter" fans.

A group of fans are now trying to get you to change your mind by creating a boycott.
Today, I am joining the boycott of all Wanner Brother Products and movies until you change your mind

Thank you,
Molly Dubrowski

Wednesday, August 13, 2008

ProFile Stock Launches Artist's Friendly Website

ProFile Stock Launches

This past month a new site for illustrators was launched called Profile Stock. Bryan Gray who created the site along with his partner have spent numerous hours researching the issues that artists face in dealing with selling their work. In turn they contacted artists like myself who have been openly critical on stock houses and together we discussed what was wrong with stock sites and their approach to the market place.

Most importantly Bryan listened to what was said and formed a web site that offers quality images to clients, allows artists to negotiate their own fees directly with the client and most importantly would allow artists to control their intellectual property and benefit from the success of promoting the site to their clients.

I have had the good fortune to talk with Bryan over the past two years as they have developed their site and retooled what artists and clients need.

They have invited many Illustrator's Partnership of America (IPA) artists to take part in this venture and have listened to their suggestions. The advisory board is made up of people who understand what is wrong with the industry and how best to make it work. From people like Brad Holland and Cynthia Turner who since early 2000, have openly discussed the problems with stock houses, the failures of unionization, the flawed Conyer's bill and the effects of the current Orphan Works Bill on our industry to people like Steve Heller and Dugald Stermer.
These respected individuals have a serious understanding of artists and their needs.

Like many artists I have expressed what was wrong with stock sites and I have pulled all my images off of these sites that once claimed to be artist's friendly. ProFile Stock has created a site that reinvents the stock concept while at the same time, listening to artists who have grown weary of what is available to them.

From artists keeping 100% of their fees, access to their clients, to a new system that allows artists to print out postcards and send them to clients, this is a site artists should support.

I hope others visit the site and take a look for themselves.
ProFile Stock

Thursday, August 7, 2008



This event will be live webcast:

How Will the Orphan Works Bill Economically Impact Small Entities?
Tomorrow / August 8, 2008
10:00 a.m. - 12:00 noon
Salmagundi Club
47 Fifth Avenue (between 11th & 12th Streets)
New York, NY 10003
Free Admission

If you live in the NY area, please attend this important industry event in person.
The Roundtable will be chaired by Tom Sullivan, Director of the Office of Advocacy of the Small Business Administration.

Rich Bengloff, President, American Association of Music (A2IM)
Kathleen Bitetti, Executive Director, Artists Foundation
Barbara Bordnick, Advertising Photographer
Terry Brown, Executive Director, American Society of Illustrators Partnership
Gerald Colby, President, National Writers’ Union
Frank Costantino, Architectural Illustrator
Constance Evans, Executive Director, Advertising Photographers of America
Dr. Theodore Feder, President, Artists Rights Society
George Fulton, Advertising Photographer
John Harrington, Press Photographer
Brad Holland, Artist
Deb Kozikowski, Writer
Dena Matthews, Medical Animator
Cheryl Phelps, Art Licensor, Illustrator, Designer and Adjunct Professor
Gene Poole, Songwriter and Musician
David Rhodes, President, School of Visual Arts, New York
Alexis Scott, President, Workbook, print and online directory of visual artists
Frank Stella, Artist
Cynthia Turner, Medical Illustrator

Congress established the Office of Advocacy under Pub. L. 94-305 to represent the views of small entities before Federal agencies and Congress. Advocacy is an independent office within the Small Business Administration.

Thursday, July 31, 2008

IPA announces Senate Orphan Works Bill Put "on Hold"

Senate Orphan Works Bill Put "on Hold"

We've just received word that the Senate bill has been put "on hold." In fact, there appear to be multiple holds on it. Senators who "hold" hotlined bills do not have to identify themselves nor give their reasons for holding it. Holds are temporary. We don't know how many of you contacted your Senators on such short notice this afternoon, but many, many thanks to all of you who responded so rapidly.

Most people are unaware of the process called hotlining. In the past it was used to pass non-controversial legislation, but increasingly, it's being used to pass bills whose sponsors don't want to see debate. An excellent article in Roll Call explains the process. Here's an excerpt:

Senate conservatives are upset that the leaders of both parties in the chamber have in recent years increasingly used a practice known as "hotlining" bills - previously used to quickly move noncontroversial bills or simple procedural motions - to pass complex and often costly legislation, in some cases with little or no public debate. The increase was particularly noticeable just before the August recess, when leaders hotlined more than 150 bills, totaling millions of dollars in new spending, in a period of less than a week.

The practice has led to complaints from Members and watchdog groups alike that lawmakers are essentially signing off on legislation neither they nor their staff have ever read...

In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object - in some cases as little as 15 minutes. If no objection is registered, the bill is passed.

- From 'Hotlined' Bills Spark Concern
By John Stanton, Roll Call Staff
September 17, 2007
To read the full article, go to:

This is the second time the Senate Orphan Works bill has been hotlined this summer. The previous hotline came on June 5, the same week artists descended on Washington to urge lawmakers to oppose this controversial bill. The bill was put on hold that time too.

Since bills can be hotlined without prior notice, we'll all have to stay vigilant throughout the rest of this legislative session. Thanks again to all of you who responded so quickly.

Over 60 organizations, representing more than 250,000 creators, are united in opposing these bills in their current form. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.
Read the list:

Wednesday, July 30, 2008






To find your Senators' phone numbers go to the Illustrators' Partnership Orphan Works site:

At the top of the home page, click on "Elected Officials"
You'll find a US map:
Click on your state,
Then "Senators,"
Then click on each Senator's name,
Then click "Contact."
This will give you their phone numbers.

Please phone and fax them both.
Please call everyone you know who is an interested party and tell them we must act immediately to prevent passage of this bill.

Thursday, July 17, 2008

Petition against the Graphic Artist's Guild

Based on many of the deleted posts from this blog that have for me, raised multiple questions (for example the use of foreign funds to host an open bar at ICON) , artists have put together the following petition.

Please feel free to email me to have your name added.


It has come to our attention that for an unspecified number of years (but apparently for more than a decade) the Graphic Artists Guild has been receiving artists reprographic royalties entrusted to them from certain foreign countries. We understand that the Guild was obligated to use these funds for the good of the entire industry and not to benefit or prejudice any particular individuals or organizations.

Since it appears that Guild leaders have refused to account for their use of these monies, we have no way of knowing how much the Guild has received, but at the recent open forum at the Society of Illustrators, they reluctantly acknowledged receiving over $400,000 in 2007 alone.

We now understand that these royalties are the earned income of illustrators from all genres of illustration and are not Guild-generated income. As members and former members of the Guild, we were never made aware that these royalties even existed until it was brought to light by circumstances following the first Illustrators Conference in Santa Fe New Mexico in 1999.

Following that conference, a grassroots team of illustrators, advised by internationally respected attorneys acting pro bono, attempted to create a collecting society to begin returning reprographic royalties to illustrators. These actions were opposed by Guild officers using personal attacks and defamatory charges.

We have now been made aware of minutes from a Guild steering committee meeting dated Jan 8, 2003 which indicate that at the same time as Guild leaders were attempting to discredit this grassroots movement, the Guild was facing a financial crisis brought on by “gross mismanagement.” These minutes specify that the Guild’s officers planned to “rectify the situation” by increasing “their” “income from foreign reprographic royalties.”

These actions by Guild leaders to discredit a legitimate effort by illustrators has clearly been prejudicial to the interests of American illustrators. Just as the Guild’s apparent use of artists’ royalties to cover up their mismanagement of funds has clearly benefited the Guild and its officers at the expense of others.

Therefore we, the undersigned, do hereby acknowledge as fact that:

1. The Graphic Artists Guild has been collecting, for an undisclosed number of years, and without accountability, artists royalty monies from overseas collecting and distributing agencies.

2. The terms of receipt of these monies by the Guild is to benefit the entire field of illustration without preference or prejudice to any individual or organization.

3. Yet the Graphic Artists Guild has systematically attempted to discredit a legitimate effort by illustrators to bring accountability to the collection and distribution of the funds, and therefore

4. We charge that the Guild has misused artists royalties in a doubly inappropriate manner.

Based on these facts we, the undersigned, believe that the Graphic Artists Guild is not representing our best interests and we condemn the officers of the Guild for their apparent abuses of both the finances of illustrators and the trust of our industry.

Monday, July 7, 2008

A Wedding Gift

Above is a photo of a wedding gift for one of our favorite friends. The marriage of Megan and Tim Hughes was a special event for all of us and the studio produced this bathroom/ kitchen cabinet in the colors to fit their home. The inside cabinet is painted yellow and filled with towels and bath material.

The outside cabinet is distressed in colonial pewter and brick red and the technique was demonstrated on this specific cabinet in last month's Pine Hills Art event.

Wednesday, July 2, 2008

Orphan Works and ICON's failures

While the international communities are now lining up to condemn the Orphan Works bill, this week the next ICON event is going on with no discussion on this issue being given any real formal thought. There has been some effort to jerk something together but with strings attached. As many people may have read on an earlier reply a Graphic Artists Guild member stated that GAG now owns the conference.

"...We will take this money and show you what the guild is all about and then what will you have? Ten years of telling us how important you are or putting us on notice. We have the money- the conference and the power and all you have is a bunch of old men telling us what we should be doing. We made the changes with the copyright office you didn't, we told people about stock houses you didn't.
And in a few months we will be showing you the exit door you loser..."

While it seemed at the time just a boastful statement it now rings true given the facts that GAG has given ICON $15,000 to host an open bar for the event and demanded to be on a panel about advocacy with Brad Holland. So instead of a knowledgable discussion on the issue, most artists who attend will only get GAG double speak.

Not unlike the SI event from several months back. GAG disruption

Using foreign reprographics money which is supposed to be going to fight artists issues and not pay for open bars, GAG has also used this money ($200,000) to enlists a pro-Orphan Works's lobbyist and has spent the past few months asking artists to not respond to any call for action.

While many artists are having a hard time finding work, they can rest assured that GAG and ICON are looking out for their best interests.

Yo Ho, Yo Ho! Drink up me 'earties, Yo Ho
We extort, we pilfer, we filch and sack.
Drink up me 'earties, Yo Ho!

International Confederation Condemns U.S. Orphan Works Act

Last week,the International Council of Creators of Graphic, Plastic, and Photographic Arts (CIAGP) adopted the following resolution:

"Resolved that the artists rights societies of 31 countries, members of CIAGP, under the aegis of the International Confederation of Societies of Authors and Composers (CISAC), hereby expresses its condemnation of any effort by the United States Congress to legitimize and endorse an 'orphan works' regime, which would function to the great detriment of the creators of these works, and deprive them of their artists' rights."

The resolution was unanimously adopted during the international conference of CISAC. It was proposed by Dr. Ted Feder of the U.S., President of the Artists Rights Society

CIAGP is the visual arts division of CISAC. CIAGP collectively acts for over 100,000 artists, photographers and illustrators through artists rights societies in 31 countries. CISAC works towards increased recognition and protection of creators' rights. Founded in 1926, CISAC is a non-profit organization headquartered in Paris.

Monday, June 30, 2008

Barney Frank on Orphan Works

Dear Mr. Dubrowski:

Thank you for contacting me in opposition to the Orphan Works
bills being considered by the House and Senate. I share your
opposition to this legislation as it stands, because I believe that it
would place an excessive financial burden and impose an undue
time commitment on small artists who try to protect their work.
The subsequent cost of copyright breaches for these small artists
would be devastating for those who cannot comply. On the other
hand, I must say I do agree with the intent of this legislation, and I
believe that it would be an important step for the artistic
community on the whole. Without appropriate changes made to
the problematic provisions of the bill, I will be unable to support it.
But if changes are made in a way that satisfies both the small
artists and the larger organizations, I will vote for it.


Sunday, June 22, 2008

Illustrator's Partnership offers solutions to Orphan Works

One of the few organizations that's not taking a wait and see approach or rolling on the Orphan Work's Bill, so they can create their own digital registry, IPA sent this email around offering the best solution to the mess that is the Orphan Works bill. Please feel free to email it to senators and any artists that might need to read this.


An Orphan Works Solution

We have a proposal to solve the Orphan Works issue. It would let libraries and archives digitize their collections and let individuals duplicate family photos without fear of massive infringement penalties. These are the two needs most commonly cited by the bills’ sponsors and they can be resolved quite simply. Our proposal would limit the bill’s effects to works that are really orphans, with no unnecessary spillover effect to damage the commercial activities of working copyright holders.

Digitizing the Collections of Libraries and Museums
Digitizing someone’s work is an act of reproduction and is therefore subject to the authorization of the copyright holder. But to let accredited libraries and archives bypass these authorizations, the law could grant them certain exceptions to reproduce works without the prior consent of the rights holders, mainly for preservation purposes.

To avail themselves of this privilege, institutions could file a notice of intent to infringe with the Copyright Office, documenting that they’ve made a reasonably diligent, but unsuccessful effort to find the copyright holder. These exceptions should not be extended to cover reproductions on a mass scale, because that would clearly conflict with the artists’ own exploitation of their works and that would prejudice the legitimate interests of the copyright holders, a clear violation of the 1976 Copyright Act, the Berne Convention and Article 13 of the TRIPS agreement, to which the US is a signatory.

This proposal is consistent with the submission of the International Federation of Reproduction Rights Organizations (IFRRO) to the European Union’s i2010 Digital Libraries project. See our 2006 report on this: This means our proposal would meet the needs of libraries, museums and archives, harmonize US policy with our trading partners overseas and win wide praise from the creative community in the US, who would not see the rights of their own work put at risk.

Solving the Grandma issue
We believe similar orphan works situations - family photo restoration and duplication, personal genealogy usage of orphan works, and orphan works rights clearance for documentary filmmakers – can all be resolved in a similar manner, by carefully and precisely expanding Fair Use to permit limited individual infringements under contractual agreements.

For example, family photo issues could be resolved by means of a simple contract: the person who wishes to duplicate or restore a photo of Grandma could sign an easy-to-understand agreement (with either companies such as Wal-Mart or with the photographer next door), stipulating that they've made a reasonably diligent, but unsuccessful search to identify or locate the photographer of record. By doing so, they’d qualify for a precise limited copyright exemption to restore or duplicate the work for home and/or family use only. Under this scenario, it the photographer of record subsequently shows up, the contract would define the specific remedies.

The case of an individual who wishes to duplicate his or her own family photos would be even simpler to deal with: the individual would simply sign a form stipulating that he/she is the author and copyright holder of the photo - period. Any bad-faith assertions or violations of such agreements could then be dealt with as a contractual matter between individual parties, with no unnecessary damage to the rights of others.

A Limited, Workable Solution
We believe this kind of contractual solution to individual orphan works problems would have two virtues:

1. It would create certainty by specifying the terms of each transaction and would, in fact, mirror the kind of indemnification that professional artists and photographers routinely supply to clients, stipulating that our work is original and doesn't infringe the rights of others.
2. It would have the additional virtue of requiring that only those who avail themselves of the right to infringe would be required to understand the complexities of copyright law, unlike the present bill, which would require all citizens to familiarize themselves with the risks and obligations inherent in the proposed Orphan Works Acts.
3. It would not legalize the infringement of billions of managed copyrights on the grounds that some of them might be orphans.

We believe solutions like this could be arrived at amicably by working with members of the creative community, who are familiar with how copyright law intersects with standard business practice. This kind of imaginative solution should win widespread praise from all parties, while preserving the sanctity of existing copyright-related contracts. It would protect the small businesses that are the heart and soul of the creative community and would continue to act as an on-going incentive to further the creation of new work.

—Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Thursday, May 15, 2008

Senate Committee Approves Orphan-Works Bill

From The Chroncile
by —-Andrea L. Foster

May 15, 2008

Senate Committee Approves Orphan-Works Bill

The Senate Judiciary Committee unanimously approved a bill today to make it easier for scholars, archivists, and others to use orphan works. These are books, films, and other creations whose owners cannot be identified. Those who redistribute the material risk incurring penalties for copyright infringement. The legislation, The Shawn Bentley Orphan Works Act, S.2913, would make it less costly for people to exploit orphan works.

A companion bill was approved by a panel of the U.S. House of Representatives last week.

Maybe now it is time for artists to ask why has the Graphic Artist's Guild told artists to not write letters?

Wednesday, May 14, 2008

CAPIC Joins Opposition to Orphan Works Bill

CAPIC is one of the latest groups of organizations that oppose the Orphan Works bill.

The following is a letter that was sent out to all of their members. Most artist's organizations are contacting their members directly about the bill and asking them to send out letters right away.
Thier efforts as those of CAPIC and IPA have done much to help inform the industry on this matter.

This grass roots movement continues to grow as artists are contacting media outlets and informing the general public about the problems of this bill.

Please send this email around to artists friends and family.



Washington is on the verge of voting on a bill called ‘’The ORPHAN BILL’’. Lobbies from Hollywood, Google, Associations of Museums in America, etc promoted this. This bill stipulates that any work where the author is not known could be used and commercialized at will if a “reasonably diligent search.” has failed to find the author. This “reasonably diligent search” would be determined by the user/infringer.

This bill targets all types of work: from professional paintings to family snapshots, from artistic work, to commercial work, personal and wedding photos, published or non-published, from literary works, to music, to visual arts, to film, works that reside or have ever resided on the internet or have been disseminated by any media. The bill may be more damaging to the visual arts and music because this kind of work is more frequently disseminated on the web without due credit or, in some instances, with the artists name removed. This will also have an enormous impact on Indigenous people’s culture since their work is never attributed to any individual.

At the same time this bill will create privately held commercial registries. Private corporations will be able to create registries where all authors will have to register all of their work to protect them from becoming orphaned: ie; for a photographer, every click of the camera, for an illustrator every sketch. Any work not registered could become orphaned and could be used and/or commercialized by any American entity. It will be the private sector that will decide the cost and the means of registering one’s work.

Even if this bill becomes a law in the United-States it will have a very big impact on creators around the world, on creators like you. Obviously this bill when passed into law will not make any difference between the works created by an American citizen and the works created by anyone else in the world. The implication is that EVERY work from everyone in the world would have to be registered in the USA. (Not a bad way to create an economic boom for Google and other American corporations). This create two different worlds with unfair competition: Only Americans will be able to appropriate most of the world work’s, while this practice will stay illegal in the rest of the world. Meanwhile, it may well induce a crash in the price of licensing work everywhere else.

This law violates the international Berne Treaty and the TRIP negotiations (Agreement on Trade Related Aspects of Intellectual Property TRIPs UNESCO.) It may be susceptible to an international lawsuit under international treaties.

Many American creator’s associations are against this bill. They are asking their members to write letters to Washington. They are also asking the same from the international community.

When this law is enacted in the US, the same lobbies will ask other governments to do likewise. If we do not voice our concern now it may be difficult to voice it later with credibility when the same law may be presented in one’s own country.

We are asking you, your members and your associations to take a minute and write to Washington. Do not think it won’t make a difference. It will.

A letter you can use is reproduced bellow. Here is the link to the Illustrators’ Partnership in the US. We agree with their arguments.

This bill could be voted on in a few weeks. We urge you to act in the next few days. We also ask you to forward this document to any group you are in contact with here and internationally.

Andre Cornellier
Copyright Chair
CAPIC National
Canadian Association of Photographers and Illustrators in Communication

PS. This letter also explains the situation very well



I'm writing to urge you to oppose the U.S. Orphan Works Bills, H.R. 5889 and S. 2913, introduced into the House and Senate on April 24, 2008. These bills would amend Chapter 5 of Title 17, United States Code, (Copyright law) by adding “§ 514. Limitation on remedies in cases involving orphan works.” This new limitation on remedies will be imposed on any copyrighted work wherever the infringer can successfully claim an orphan works defense, whether legitimate or adjudicated by courts to be conclusive.

The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate by means of a “reasonably diligent search.” The infringer himself will be allowed to determine when he has met this imprecise test. The infringer would be free to ignore the rights of the author and use the work for any purpose, including commercial usage. This is a radical departure from existing international copyright law and conventions, as well as normal business practices.

These bills will have a disproportionate impact on visual artists because pictures are commonly published without credit lines or because credit lines can be removed by others. This is especially true of art published in the Internet Age. And since unmarked pictures cannot be sourced or dated, works by artists like me – who live and work outside the U.S. - will be just as vulnerable to infringement as the work of American artists.

Because visual art is so vulnerable to orphaning, there is only one way to match an unmarked image to its author: by relying on image-recognition databases. The Copyright Office has stated that with the passage of these bills, such registries will be “indispensable,” and they have stipulated that the registries must be created in the private sector and run as commercial, for-profit ventures.

Forcing artists to rely on any form of registry to protect their work is a violation of the Berne Convention for the Protection of Literary and Artistic Works. This law forbids any member country to impose registration on a rights holder as as a condition of protecting his copyright. See Berne. Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality.” But forcing international artists to rely on commercial registries in order to to protect their work from infringement - made legal by a law unique to the United States - is deeply troubling.

There are many reasons why international law forbids coerced registration. Before such registries can be meaningful, all the billions of images currently protected by copyright must first be entered into them with authorship information intact. That means that millions of pictures from around the world, which go unmatched, will be orphaned, even if the artists are alive, working and managing their copyrights. This would even be true of images registered in the databases, but which go unmatched because of computer errors.

There is no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would fall entirely on the artists. Most professional artists have created thousands – or tens of thousands - of drawings, sketches, photos and paintings. This includes both published and unpublished work. The costs of paying to have all these works digitized and registered would be beyond their ability. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work being automatically “orphaned” and subject to legal infringement.

Presumably the Copyright Office and Congress expects non U.S. artist like me to register all their past and future art with the new hypothetical U.S. databases, or see my work exposed to commercial infringement under U.S. law.

These bills will create massive uncertainty in the markets where visual art is bought, sold and licensed. It will do this by voiding entirely the exclusive rights of every visual artist whose work any infringer can lay claim to. Reason: I would be powerless to stop the unauthorized uses of my art, even in cases where I would never, or could never, permit those uses. Besides seeing my work used in objectionable or defamatory ways, this will void existing contracts already in force between my clients and me. This is an attack on the principal of art itself, because my exclusive right of copyright is the only tool I have to assert creative control over my work and to protect its value in the marketplace.

The U.S. is a member country of the Agreement on Trade-Related Aspects of Intellectual Property (The TRIPs Agreement). Article 13 of this copyright-related treaty allows certain “limitations and exceptions” to an artist’s exclusive right of copyright. These are codified as a Three-Step Test:
“ Member [countries] shall confine limitations and exceptions to exclusive rights to:

(1) certain special cases

(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rights holder.

The Orphan Works Bills of 2008 have been written so broadly that their use cannot be confined to true orphaned work. These bills will violate the Berne Copyright Convention and fail the Three-Step Test of TRIPs.

Any Orphan Works solution should precisely define an orphan work as a copyright no longer managed by a rights holder, and be limited to uses in the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education.




Ambassador Susan C. Schwab
Office of the United States Trade Representative
600 17th Street, N.W.
Washington, DC 20508
United States of America
FAX: 001 (202) 395-4549
(Telephone: (202) 395-3000)

Sunday, May 11, 2008

Leahy and Hatch still pushing Orphan Works bill forward

While some groups still are asking people not to write to their congressman, this should show the urgency needed on this action. Now more than ever please contact your senaotrs through IPA's Capwiz site :

From CongressDaily PM reports:

"The Senate Judiciary Committee punted on a bill today that would rework a portion of U.S. copyright law. Republican members needed more time to review the measure, which was new on the agenda, a GOP aide said after the brief markup. The legislation would change a statute that governs "orphan works," which are musical tracks, writings, images, videos or other content whose owners cannot be easily located. Judiciary Chairman Patrick Leahy said he had hoped the panel would approve the bill, which is co-sponsored by Sen. Orrin Hatch, R-Utah, a day after companion legislation passed the House Judiciary Courts, the Internet, and Intellectual Property Subcommittee."

Friday, May 9, 2008

Orphan Works Bill Approved by House Subcommittee

The Orphan Works bill has sailed through the House Subcommittee without any changes to the bill. Several organizations have claimed they are staying neutral but are asking artists NOT to sign letters.

That is not neutral.

I can not tell you how destructive that advice is and I ask that if you are a creative artist or live and work with one that you take action right away.


Please Take Action/ Write Congress


Orphan Works Bill Approved by House Subcommittee
Published: May 9, 2008

WASHINGTON, D.C.—A House Judiciary subcommittee has approved a bill that would make the use of orphan works — copyrighted materials whose owners cannot be identified — substantially easier, Congressional Quarterly Today reports. The Subcommittee on the Courts, the Internet, and Intellectual Property approved HR 5889, the Orphan Works Act of 2008, with a manager's amendment by Rep. Howard Berman, D-Calif., who first introduced the bill last month.

The bill seeks to limit the potential liability of users of orphan works depending on whether they qualify as good faith users. The criteria for this would mainly be the completion of a thorough search to find the potential copyright holder of a work before use. The search criteria necessitates the creation of U.S. Copyright Office–certified databases that would list each work's author, contact information, and an image or description of the work. If a user was determined to have acted in good faith, he would be exempt from statutory damages and legal fees if the owner of the work was later found, though he would still be expected to pay "reasonable compensation." Bad faith users would still be liable as they are today.

Many artists, especially photographers and members of the Illustrators' Partnership of America, oppose the legislation, saying it shifts the onus from the user to the copyright holder. They also protest that the search criterion will not adequately protect artists who have thousands of images that may or may not be registered in specific Copyright Office–certified databases.

Under the legislation, archives, nonprofit educational institutions, and public broadcasting will receive specialized protection from monetary liability if considered good faith users. Rep. Berman's amendment includes museums in this category as well.

A companion bill, S 2913, the Shawn Bentley Orphan Works Act of 2008, was introduced in the Senate last month by Sen. Patrick Leahy, D-Vt. That bill was scheduled for a markup in the Senate on May 8, but was put off until next Thursday, according to the blog Photo Business News & Forum.

Orphan Work: New Talking Points Making the Rounds

If you have not yet seen it, several sites from those who support the Orphan Works bill are now circulating their new "Talking Points" on blogs. In these talking points they claim that these digital databases are not registries at all and the bill does not include the term.

But later in describing the bill they also use the term "visual registries". So if it is good enough for them it's good enough for me.

They're registries and they are going to be commercial registries.

The Illustrator's Partnership of America has sent this email below, replying to these new talking points. I'm sure there will be a whole new batch of new talking points coming out because as my friend likes to say, " We must be over the target, because the flack is getting louder."



“Neither the House nor the Senate drafts of the bill contain the word “registries,” [they write] but rather they require users to search non-governmental databases of copyrighted works. The purpose of any database is not meant to take the place of copyright registration, but to have a way to search for visual images. Any participation in such a database would be voluntary.”

But this doesn’t mean what it appears to say. Take it point by point:

Talking Point #1: “Neither the House nor the Senate drafts of the bill contain the word ‘registries.’ ”
Response: Correct. They contain the word “databases,” a synonym:

Registry: register: an official written record of names or events or transactions

Database: A database is a structured collection of records or data

Q: Why a synonym?
A: Because international copyright law forbids member countries to impose registries as a condition of protecting copyrights: Berne/Article 5(2) ”The enjoyment and the exercise of these rights shall not be subject to any formality.”

In other words, if they used the word “registries” in the bills, it would be a red flag to other countries that the US is flirting with non-compliance with international treaties.

Talking Point #2: “...rather they [the bills] require users to search non-governmental databases of copyrighted works.”
Response: Non-governmental databases” means databases maintained in the private sector.
For users to find your work in these commercial databases, your work would first have to be in the database.
Work not in the database would be orphaned.

Talking Point #3: “Any participation in such a database would be voluntary.”
Response: Congress cannot pass a bill making registration mandatory because that would violate Berne/Article 5(2).
And that would state explicitly to other countries that the US no longer intends to honor its international agreements.
There are red flags all over these talking points.

Summing up: The Orphan Work bills would mandate the creation of registries by commercial interests.
You would not be legally forced to place your work with these for-profit registries.
But failure to do so would orphan your work.

The deceptive talking points accompanying this bill are another red flag.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

Take Action/ Write Congress

Over 37,000 messages have been sent from the site in the last 48 hours. Please spread the word.

Thursday, May 8, 2008

Artists Opposing Orphan Works

As of today over 16,000 letters have been sent to congress concerning the orphan works bill.

Other groups have begun to notice and get their members involved.
Editorial Photographers (EP), Society of Photographers and Artists
Representatives (SPAR) and the National Press Photographers Association
(NPAA) have joined the IPA's CapWiz site.

Please forward this to others and continue the grass roots effort.

This article appeared on May 7th in Intellectual Property Watch
Intellectual Property Watch is a non-profit independent news service which reports on the interests and behind-the-scenes dynamics that influence the design and implementation of international intellectual property policies. It is based in Geneva Switzerland.

(7 May 2008) Support Mixed For US Orphan Works Bill As Issue Catches Global Attention
By Dugie Standeford for Intellectual Property Watch

In an issue that may be rising internationally, legislation pending in the United States Senate and House to free up use of “orphan works” whose copyright owners cannot be found has won strong support from the recording, webcasting and library sectors but faces challenges from visual artists and the textile industry...

Visual Artists, Textile Industry Opposed

Illustrators, photographers and other visual artists, however, are mobilising to challenge the proposal.

“Our chief objective to these bills is that they’ve been written so broadly their effect can’t be limited to true orphaned work,” Illustrators’ Partnership of America (IPA) founder Brad Holland told Intellectual Property Watch. Forcing anyone who creates a visual work, whether professional or personal, published or unpublished, to register it with yet-to-be-created commercial registries will cause users to rely increasingly on the companies to perform a diligent search, he said. Unregistered works could then be infringed as orphans, he said.

The proposals will disproportionately affect visual artists because paintings, drawings and photographs are often published without contact information, credit lines can be easily removed by others, and pictures can be separated from the publications in which they appear, Holland said. And because visual artists often produce many more works than the most prolific author or songwriter, it will cost them more time and money to register and maintain tens of thousands of registrations, he said.

The legislation will create a “gold mine for opportunists” as commercial archives harvest newly-created “orphans,” alter them slightly to make “derivative works,” and then register them as their own “creative works,” Holland said. In addition, coercive registration may violate the Berne Convention, which bars requiring “any formality” as a precondition to copyright protection, the IPA, Advertising Photographers of America and Artists Foundation of Massachusetts said in 30 April comments to the Senate Judiciary Committee.

Take Action: Don't Let Congress Orphan Our Work
2 minutes is all it takes to write Congress and protect your copyright:

Please forward this message to every artist you know.

Wednesday, May 7, 2008

Take action on Orphan Works.

Take Action: Don't Let Congress Orphan Our Work

We’ve set up an online site for visual artists to e-mail their Senators and
Representatives with one click.

This site is open to professional artists, photographers and any member of
the image-making public.

We’ve provided sample letters from individuals representing different
sectors of the visual arts.

If you’re opposed to the Orphan Works act, this site is yours to use.

For international artists and our colleagues overseas, we’ve provided a
special link, with a sample letter and instructions as to whom to write.

2 minutes is all it takes to write Congress and protect your copyright:

Friday, May 2, 2008

Open Forum to Oppose Orphan Works

THE ILLUSTRATORS' PARTNERSHIP has emailed this around to artists and illustrators.

They have also created a CapWiz website with the support
of other artist's organizations to take action against the Orphan Works Bill.
The link is

Please take the time to visit the site and or go to this event to get a better understanding of the bill and how it will effect the industry.

It's much better than reading blogs.

Ken Dubrowski


You are cordially invited to attend an important industry-wide event

Don’t Let Congress Orphan Your Work
An open forum to oppose the Orphan Works Act of 2008
Tuesday, May 6 6:00 PM
The Society of Illustrators
128 East 63rd Street
New York, NY 10065
Admission will be free

The Orphan Works Act of 2008 will endanger the rights of anyone who creates intellectual property.

It will expose your art to commercial infringement. It will include work from professional paintings to family snapshots.
It will include published and unpublished work. It will include any image that resides or has ever resided on the internet.
It will force you to register every picture you do with privately-held commercial registries. It will make all unregistered works potential orphans.

This radical change to U.S. copyright law will shift the burden of diligence from infringers to rights holders.
It is wrong to give infringers the right to make money from your property without your knowledge or consent.
You should not have to pay businessmen to keep the work you’ve created.

The Orphan Works Act is an assault on national and international copyright laws.
It’s an assault on the property and privacy rights embodied in them.

Illustrators, photographers, fine artists: let’s come together and act to keep Congress from orphaning our work.

This event will be webcast live.
Panelists at this forum will include:

- Brad Holland Hall of Fame artist who has testified against the Orphan Works Act of 2006 in both the House and Senate
- Cynthia Turner Award-winning medical artist who has collaborated in written testimony to both the House and Senate
- Constance Evans Photographer, painter and Executive Director of Advertising Photographers of America
- Terry Brown Director Emeritus of the Society of Illustrators, currently Director of the American Society of Illustrators Partnership
- Others to be announced

To learn more about the Orphan Works Bill, listen to the interview with Brad Holland:

mp3 version:
YouTube version:

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

Tuesday, April 22, 2008

Orphan Works Bill nears release

Today the House and Senate sent us draft copies of the new Orphan Works Act of 2008. They haven’t officially released it yet, but we’ve been told the Senate will do so this week. A quick analysis confirms our worst fears and our early warnings. If these proposals are enacted into law, all the work you have ever done or will do could be orphaned and exposed to commercial infringement from the moment you create it.

A Webcast interview with Brad Holland about this bill is now available at:

Please listen to it because this radical proposal, now pending before Congress, could cost you your past and future copyrights.

On Saturday April 5,2008, artist and producer Mark Simon interviewed Hall of Fame illustrator Brad Holland on the subject of Orphan Works legislation. The warnings in this interview have now been confirmed by the advance drafts of the bill. Learn what artists groups are doing and how you can help oppose this radical departure from traditional copyright law and business practice.

The Illustrators’ Partnership is currently working with our attorney - in concert with the other 12 groups in the American Society of Illustrators Partnership to have our voices – and yours - heard in Congress. We’ll keep you posted regarding how you can do your part.

Mark Simon has worked on over 2,500 productions in the last 20 years as a director, producer, story artist, animator and designer. His clients include Disney, Universal, Viacom, Sony, HBO, Nickelodeon, Steven Spielberg, Fox, USA Networks, ABC, AT&T, and many others.

Please forward this information to every creative person and group you know. Mr. Holland and Mr. Simon have given their permission for this audio file to be copied and transferred and replayed.

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists

Sunday, April 20, 2008

Orphan Works: No Myth

I've seen some of the posts from sites like "Radio Free Meridith" and the other similar blogs which have tried to discredit the issues raised from groups like IPA about the negative effects of Orphan Works.

Unfortunately most of these sights/blogs that have disagreed with the issue that artists should oppose Orphan Works or feel that this is some kind of made up internet hoax miss the point. Most of this opposition comes in the form of opinion pieces with no real data to back up current debate.

I've posted here a brilliant reply by Brad Holland and Cynthia Turner who have taken the points some of these sites have raised and torn it down. 

It is worth reading even though it is complex with lengthy quotes and links to every point made from these web sites. But if people are to get past misinformation from opinion blogs it is important that replies are done in a professional way such as this with statements made on the record.

I am a professional illustrator and I completely oppose the Orphan Works bill as most artists do.

I know that registries will be formed by groups, many who now support Orphan Works to become large revenue streams for these organizations and that could lead to a terrible mess for freelance illustrators.

The cost for working artists with large collections of art, will become so prohibitive that a great many images will be lost solely due to the fact artists will not have the money to register their images. These new costs in an already slumping economy will but artists into the position of should I pay for new promotion , web site and source book ads or pay to register 600 images. Maybe artists will just do a few at a time and hope that someone does not find one of their images on the web, redesign it,  remove their name and register it ahead of time to claim it for their own. 

How will artists be able to afford this additional cost?

I'll let Brad Holland's excellent response below answer these questions raised about Orphan Works from the blogs.

But I have one question that has not been asked and one I asked of my students.

Why would an artist's organization that claims to support working artists not come out against the new Orphan Works bill? Which group has not? Why are they silent?

The answer is obvious...

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.

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.”

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”.
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..."

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).”

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

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.”

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

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).”

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

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).”

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)

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 “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law

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.