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