GRAPHIC ARTISTS GUILD LAWSUIT DISMISSED

FROM THE ILLUSTRATORS' PARTNERSHIP 

4.27.2011

GRAPHIC ARTISTS GUILD LAWSUIT DISMISSED Last week the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators' Partnership of America (IPA) and five named individuals. In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a "business relationship" GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators' work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists "interfered" with GAG's "business" of appropriating these orphaned fees. In her decision, Judge Debra James ruled that statements made by the Illustrators' Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a "common interest" in orphaned income; and that a "common-interest privilege" may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty.  Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote: "Inasmuch as the statement [by IPA] was true, [GAG]'s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns."  (Emphasis added.) And she noted: "The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists." Labor Department filings provided as evidence to the court document that between 2000 and 2007, GAG collected at least $1,581,667 in illustrators' reprographic royalties. GAG admitted to having collected similar royalties since 1996. GAG's officers have repeatedly refused to disclose how much money their organization has received to date or how the money has been spent. DUTY AND COMMON INTEREST  The judge concluded that this situation justified an assertion of common interest by IPA. This means that "the party communicating [relevant information] has an interest or has a duty" to convey that information truthfully to others "having a corresponding interest or duty": "The duty need not be a legal one, but only a moral or social duty. The parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information. Here the plaintiff Guild's factual allegations demonstrate that the defendants' statements were both true, and fall within the parameters of the common-interest privilege." (Emphasis added.) We hope this decision will end the two and a half years of litigation during which GAG pursued its claims against IPA and artists Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators.   All defendants were participants in a public presentation sponsored February 21, 2008 by 12 illustrators organizations. The presentation was disrupted by GAG's officers and their attorney. A videotape of the event proves that statements which GAG alleged to be defamatory were made only in response to GAG's intervention, and that until that time, no speakers had mentioned GAG or GAG's longstanding appropriation of illustrators' royalties.  Last year, on January 12, 2010, Judge James issued a prior ruling dismissing nearly all of GAG's causes of action. This left only a claim asserted by GAG against Brad Holland. But in a response filed with the court February 4, 2010, attorney Jason Casero, serving as counsel for IPA, pointed out that GAG's remaining claim rested on an allegedly defamatory statement that Holland never made. When confronted with evidence, GAG was forced to admit it had "inadvertently attributed" the statement to Holland. GAG subsequently filed new motions in an effort to revive its claims against IPA and the other defendants. Last summer the judge consolidated GAG's multiple motions and on April 18, 2011, she dismissed all ten causes of action against IPA and all the defendants.   REPROGRAPHIC RIGHTS AND ORPHAN WORKS GAG served the lawsuit on IPA October 10, 2008, seven days after Congress failed to pass the Orphan Works Act of 2008. The Illustrators' Partnership and 84 other creators' organizations opposed that legislation. GAG had lobbied for passage of the House version of the Orphan Works bill. Mandatory lobbying disclosures document that GAG spent nearly $200,000 in Orphan Works lobbying fees. In our opinion, the issues behind the lawsuit are greater than whether an organization should be allowed to benefit from the millions of dollars that, collectively, illustrators are losing. We believe the reprographic rights issue is linked to both orphan works legislation and the Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011. Each of these developments involves an effort by third parties to define artists' work and/or royalties as orphaned property, and to assert the right, in the name of the public interest or class representation, to exploit that work commercially or to appropriate the royalties for use at their sole discretion. So far, judges have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. Now the challenge for artists will be to see that Congress does not pass legislation to permit what the courts have so far denied. We'll have more to say about this issue in the future. For now we'd like to conclude by thanking our attorney Jason Casero, who provided us with a strong, incisive and heartfelt defense; his law firm, McDermott Will & Emery, which provided us with his services; the Volunteer Lawyers for the Arts of New York and its Director Elena Paul. We'd also like to thank Dan Vasconcellos, Richard Goldberg, and the over 700 artists and illustrators who in 2008 signed a petition asking GAG (unsuccessfully as it turned out) to drop the lawsuit; the support of so many colleagues was a great tonic at a low time. Finally we'd like to thank the representatives of the 12 organizations that comprise the American Society of Illustrators' Partnership (ASIP). ASIP is the coalition organization IPA incorporated in 2007 to act as a collecting society to return royalties to artists.   - Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership

Recipients may post or email this message in its entirety to any interested party. Link: http://ipaorphanworks.blogspot.com/2011/04/graphic-artists-guild-lawsuit-dismissed_27.html

Court Rejects Google Book Settlement

From The Illustrator's Partnership of America
3.23.2011

Yesterday, U.S. Circuit Judge Denny Chin rejected the Book Rights Registry settlement between Google and the US Authors Guild. The $125 million commercial agreement would have rewarded both parties for the largest mass infringement of authors' copyrights in history. Instead, the judge ruled it a business deal "too far." "A Reversal of Copyright Law" is what we called this agreement in our warning to illustrators September 29, 2009. Like the visual arts "databases" we opposed during the Orphan Works fight, we wrote: "this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author. "Both schemes would force authors to opt out of commercial operations that infringe their work or to 'protect' their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law." Judge Chin held this to be the case. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled. "[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission." The judge also noted objections to the "Adequacy of Class Representation."  In short, this holds that neither Google, nor any organizations claiming to represent authors, nor the university libraries that gave Google "permission" to digitize their holdings, own the copyrights to the works this agreement would have allowed them to exploit.   Therefore, they have no standing to broker deals based on claims that they represent the "class" of authors.   The judge held this to be the case even where organizations asserted the right to "expropriate" "orphaned" royalties belonging to rightsholders.  Noting that "After ten years,unclaimed funds may be distributed to literary-based charities," the judge concluded: "[A]t a minimum a fair question exists as to whether this Court or the Registry or the Fiduciary would be expropriating copyright interests belonging to authors who have not voluntarily transferred them. As Professor Nimmer has written: 'By its terms Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts of seizure, etc., by any 'organization' as well.' 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §10.04 (Rev. Ed. 2010) (footnote omitted)." [Page 31 of the judge's ruling, emphasis added.] In rejecting the settlement, Judge Chin also echoed the US Justice Department's antitrust objections: The deal, he wrote, "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission..." He suggested the settlement might win approval if it were revised to cover only those who opt into the agreement. - Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership

Just finished a country kitchen table...

Pine top with maple turned legs. Painted in a sage finish.

Ken Dubrowski Website Design

Just completed the Boston Catholic Appeal 2011 Website and a few others are still being worked on. I now offer website design as a new service to my studio for those interested. Check out the link.http://www.kendubrowski.com/Newsite/html/website_design.html

Ken Dubrowski Studio Newsletter

Hi. 

I just designed and wrote a small six page newsletter detailing how I create an illustration, build a piece of furniture and make a great winter chili. Instead of including the .pdf in this email and taking up large file space, I have used Apple's new Iwork website to post it. 

Please check it out if you wish and let me know what you think about the project. 

If nothing else you will get a great recipe out of the deal.

Thanks Ken

http://public.iwork.com/document/?a=p64863420&d=Backup_of_studio_2011.pages

The Consequences of Hate Speech

"When you look at unbalanced people, how they respond to the vitriol that comes out of certain mouths about tearing down the government. The anger, the hatred, the bigotry that goes on in this country is getting to be outrageous...Let me say one thing, because people tend to pooh-pooh this business about all the vitriol that we hear inflaming the American public by people who make a living off of doing that...That may be free speech, but it’s not without consequences.” Sheriff Clarence Dupnik

Latest Illustration for Flying Magazine

Christmas Eve 2010

30 Years ago... John Lennon

30 Years ago when I was still in art school, this was a very sad day.

My roommate Bill and I were watching MNF when the news broke that John Lennon was shot. I remember Amorette Thomas telling us in tears that John and how all of us were upset. Some of us went to Fred Wessel's print shop at UHA and did a bunch of art work of John. This was my piece.

Just a sad day to remember...

Winner

With the Fairview Inn's and WATD's help, our raffle raised $1,100 to assist our neighbors in need this holiday season. 100% of your $10 donation will be used to towards buying Christmas dinner, warm blankets and a present for over 300 families in Marshfield. 

The winner of the cherry Shaker Jelly Cabinet was Katie Walsh, whose father surprised her for Christmas by purchasing a ticket in her name. 

On behalf of myself, my wife Arlene and the Marshfield Community Christmas

Thank You and have a Happy Holiday.

Ken

Cover Illustration for LBA

Cover illustration for the good folks Karen and Jan over at Broadbased Communications. 

Great people to work for...

Marshfield Community Christmas Raffle

The Ken Dubrowski Artisan’s Studio and the 

Fairview Inn Restaurant are asking for your

support this holiday season by purchasing a 

$10 raffle ticket for this custom made

hand-built cherry Shaker inspired  Jelly Cabinet.

Ten Dollars per entry and all proceeds go to MCC.

Make check payable to Marshfield Community Christmas

Fill out and mail or drop off entry no later then December 2nd 2010.

Mail to Ken Dubrowski Artisan’s Studio

845 Moraine Street Marshfield MA 02050

Who owns the GOP?

Cherry Blanket Chest

I just completed this blanket chest for a client.
This large blanket chest is made of solid cherry with dovetailed sides. The interior has two side compartments and is lined with cedar to make those blankets smell nice. The finish is a hand rubbed oil finish that looks great. 

The chest goes at the end of the bed to hold quilts and blankets.

Quincy Access Television Video of "The Creative Process"

Quincy Access Television (QAT) has posted a short video interview of my solo exhibition show "The Creative Process" on their website. The show runs in the Thomas Crane Library for the month of September.

Click to view QAT Video of Ken Dubrowski

Happy 20th Anniversary Arlene from the girls

Brad Holland replies to Questions on Mark Simon Article

Brad Holland was gracious enough to send me the following reply to questions raised on the issue of reprographic royalties from Mark Simon's article.
I am reposting it with his permission.
  

Hi Ken,

We’ve had several inquiries about this subject since Mark Simon’s article came out.

Some involve  the suggestion that if artists want to be paid their reprographic royalties, they should contact their publishers to ask if they’re “eligible.”

In my opinion, this would be sending artists on a wild goose chase.  Mark was wise not to suggest it in his piece.

First things first: If you’ve ever done work that’s been published in books, magazines, journals and newspapers, you’re eligible to receive reprographic fees.

Reprographic rights are just like other rights. They don’t come from the publisher. They’re yours. 
The only exception would be if you’ve signed them all away.

And even if you’ve signed one or two all-rights contracts, it’s not likely that you’ve surrendered all your rights to every published work you’ve ever done.

So a.) If you fit this description, you’re  eligible.

But b.) Let’s say you take this advice and contact your publisher. What are the chances a publisher will even take your call?

At best, you’d be lucky to get an editor or sales rep.  Then what?  They’ll refer you to their legal department.  Now you’re the dog that’s caught the bus. And how many artists are ready to tangle with a corporate lawyer who holds all the cards?

Contacting your publisher about your reprographic rights comes down to one of two scenarios:

Scenario 1: Let’s say you’re an artist who’s published a book, of which you’re the named author.

• Here you have a single publisher to contact and a personal sales record to inquire about.
• In this case, maybe you can get somewhere by asking for the reprographic royalties for that specific book.
• We don’t know of any cases where this has happened, but for the sake of argument let’s assume it could:
• These fees are called title-specific royalties, and
• They can be tracked only because you’re the sole author of that particular book.

But how many artists are the sole authors of books?

And what about all the other work you’ve done?

Scenario 2:The real issue in reprographic rights involves all those artists who contribute to collective works such as magazines. The fees involved here are collective fees. They’re called non-title-specific royalties and they’re collected under blanket licenses.

How do individual artists get paid for their share of this “juke box money”?

If you followed the advice to contact your publisher, here’s what you’d actually have to do:

• Call the publisher of each and every publication you’ve ever worked for to
• inquire about what percentage of that publication’s total reprographic revenues you’re entitled to
• for each and every picture you’ve ever done for them. 

How’s that likely to work out? 

• You can call publishers, but how many will take your call?
• Or editors for that matter?
• So you may get through to the art director, but
• How many art directors will want to start fielding inquiries from every artist they’ve ever worked with about the reprographic sales figures of every issue of the magazine in which their work has  ever appeared.
• The art director won’t be able to help you anyway;
• Most have never even heard of reprographic rights.
• So he/she will direct you to the sales or legal department.
• Ask the company’s lawyers if you’re “eligible for reprographic royalties,” and they’ll say no, case closed.
• So then what?

Telling artists they should each confront their publishers one-by-one is to condemn them to fruitless and ineffectual individual actions. There’s no way we can collect non-title specific royalties without a collecting society.

Why?

Because to determine an individual’s share of non-title-specific royalties, you need to make three statistical calculations:

• What percentage of total reprographic royalties should go to visual artists?
• What share of that total should go to illustrators (as opposed to photographers, fine artists, etc.)?
• What share of that should go to which individual artists?

Collecting societies in other countries make calculations like this every day, all the time.

But artists can’t deduce these numbers themselves by talking to publishers. For this you need bean counters.

And you need bean counters who work for you.
The Copyright Clearance Center collects over $165 million in reprographic royalties every year. CCC has bean counters, but they work for CCC. And CCC works for publishers.   

As artists,  we won’t get our share of these royalties until we have bean counters who work for us.

That’s what a collecting society would provide.

According to IFRRO  figures, an average 15% of reprographic revenues should be going to visual artists right now.

Fifteen percent of $165 million annually: do the math.

And that percentage is expected to grow with the growth of digital photocopying.

We started ASIP to act as a collecting society because nobody else was doing it.

It should have been done two decades ago.

If we don’t act together now, we should expect to lose these rights for good.

That’s why I’ve signed the ASIP mandate. I have 42 years of rights at stake.

The form’s easy to fill out and membership is free.

Here’s the place to go: http://www.asip-repro.org/

Thanks a million for your commitment to this issue, Ken.

 – Brad Holland, for the board of ASIP