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.
Thanks,
Ken
Please Take Action/ Write Congress http://capwiz.com/illustratorspartnership/home/
FROM ARTINFO.com
Orphan Works Bill Approved by House Subcommittee
By ARTINFO
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.
Friday, May 9, 2008
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."
Thanks,
Ken
FROM THE ILLUSTRATOR'S PARTNERSHIP OF AMERICA
“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
http://wordnet.princeton.edu/perl/webwn
Database: A database is a structured collection of records or data
http://en.wikipedia.org/wiki/Database
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.” http://www.law.cornell.edu/treaties/berne/5.html
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 http://capwiz.com/illustratorspartnership/home/
Over 37,000 messages have been sent from the site in the last 48 hours. Please spread the word.
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."
Thanks,
Ken
FROM THE ILLUSTRATOR'S PARTNERSHIP OF AMERICA
“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
http://wordnet.princeton.edu/perl/webwn
Database: A database is a structured collection of records or data
http://en.wikipedia.org/wiki/Database
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.” http://www.law.cornell.edu/treaties/berne/5.html
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 http://capwiz.com/illustratorspartnership/home/
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
READ THE FULL ARTICLE HERE:
http://www.ip-watch.org/weblog/index.php?p=1028
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:
http://capwiz.com/illustratorspartnership/home/
Please forward this message to every artist you know.
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
READ THE FULL ARTICLE HERE:
http://www.ip-watch.org/weblog/index.php?p=1028
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:
http://capwiz.com/illustratorspartnership/home/
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:
http://capwiz.com/illustratorspartnership/home/
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:
http://capwiz.com/illustratorspartnership/home/
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 http://capwiz.com/illustratorspartnership/home/
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.
Thanks
Ken Dubrowski
www.kendubrowski.com
FROM THE ILLUSTRATORS' PARTNERSHIP
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: http://www.sellyourtvconceptnow.com/orphan.html
YouTube version: http://youtube.com/watch?v=CqBZd0cP5Yc
For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
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:
http://www.sellyourtvconceptnow.com/orphan.html.
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
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
A Webcast interview with Brad Holland about this bill is now available at:
http://www.sellyourtvconceptnow.com/orphan.html.
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
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
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.
Orphan Works: No Myth
We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.
How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”
Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators' Partnership testified against it in both the House and Senate. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...
“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
Since that would give us only a month to notify artists, we decided to start now.
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview
Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.
“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.
“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
A: Maybe so, but under this bill
-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” http://www.law.cornell.edu/treaties/berne/5.html
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf
It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” http://www.copyright.gov/orphan/orphan-report.pdf
Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
"If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly www.newyorkartworld.com/commentary/holland.html “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
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. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:
“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...
“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008
Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. http://oncopyright.copyright.com/2008/03/17/orphan-works-are-back-on-congress%e2%80%99s-radar-screen/
Since that would give us only a month to notify artists, we decided to start now.
Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:
- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)
Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview
Q: Why does this exclusive right matter?
A: Two big reasons:
- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.
Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.
Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.
Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.
“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.
Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find is the Catch 22 of the Orphan Works project.
“Put simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00203
Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.
Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”
Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.
Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:
- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.
Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:
“Under current law, infringement cases follow two scenarios:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.
“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.
“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”
Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:
“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report http://www.copyright.gov/orphan/orphan-report.pdf
A: Maybe so, but under this bill
-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.
Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:
1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:
Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” http://www.law.cornell.edu/treaties/berne/5.html
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.
3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.
5. There is no Copyright Bureau of Investigation; no Copyright Police Force.
6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.
7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.
9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because
10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
11. This is a powerful incentive for a thief not to risk stealing our work.
12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.
Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.
The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.
Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.
In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf
It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:
“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” http://www.copyright.gov/orphan/orphan-report.pdf
Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “prejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1
This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?
The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:
"If you find a creative work, you may not know who created it, but you know you didn’t.”
Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.
- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership
The author has given his permission to post or forward this article in its entirety to any interested party
Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly www.newyorkartworld.com/commentary/holland.html “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law weblog.ipcentral.info/holland_ColumbiaLaw.pdf
Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.
Friday, February 22, 2008
Webcast at the Society of Illustrators
(Photo above: Executive members of GAG stage one of their famed "planned interruptions" of SI event and are photographed as they hustle out the door)
I just got back from NY where I attended an open forum at The Society of Illustrators announcing the formation of a new organization called the ASIP.
This organization, which is being formed with representation of twelve artists groups, will focus solely on bringing accountability to illustrators’ reprographic rights. The event was webcast live and has been archived for rebroadcast. Here is a link: (I'll post link above) This prestigious collection of groups, which is unprecedented in the world of illustration, is forming to strengthens the rights of illustrators.
The following groups form the ASIP:
The Society of Illustrators
The Illustrators’ Partnership of America
The Association of Medical Illustrators
The American Society of Architectural Illustrators
The Guild of Natural Science Illustrators
The San Francisco Society of Illustrators
The Los Angeles Society of Illustrators
The Pittsburgh Society of Illustrators
The American Society of Aviation Artists
The San Diego Society of Illustrators
The Illustrators Club of Washington DC, Maryland and Virginia
The National Cartoonists Society
At the event artists were told that in order for this to work they will be asked to participate by signing an agreement to authorize ASIP to represent these reprographic rights.
You may later receive this information and hear more about this.
Much like in the past when stock houses were on the rise, I think we need to support their actions completely.
For many years foreign reprographic money has been returned to parties in the US that have refused to account for what they have done with the money. Because these parties have resisted accountability, there is the likelihood that they may use questionable methods to retain these proceeds.
This method was evident in the web broadcast of the forum as the question and answer section was disrupted. While it would be easy to editorialize what happened artists need to hear what was said on their own.
I think artists owe it to themselves to watch the rebroadcast and get involved. I would suggest that you forward this email along to other artists and make them aware.
If you have any questions about the event please feel free to contact me.
Thanks,
Ken Dubrowski
Wednesday, February 20, 2008
Baker's Cabinet with Punched Tin Panels
This is a just completed Baker's Cabinet and is one of the finest pieces I have made for a client.
The client lives in a wonderful home in MA. and they were so nice to work for.
The cabinet is to be used in an older Colonial inspired kitchen, so while the interior has modern shelves with pullout drawers to get to pots and pans, the rest of the cabinet is made to look old.
The exterior is painted pine that has been distressed and worn look. Red over cream with crackle finish on the panels. The back is beaded pine with crackle cream painted over stained wood . The effect allows the cabinet to fit with the rest of the home's interior. The punched tin panels above add to the piece to make it a standout in the home.
Now I have to make another one for my wife...
Friday, February 8, 2008
Protecting Our Rights Collectively
FROM THE ILLUSTRATORS' PARTNERSHIP
You are cordially invited to attend an important industry-wide open forum
Protecting Our Rights Collectively
An Evening with Bruce Lehman
Thursday Feb 21 6:00 PM
Society of Illustrators
128 East 63rd Street
Admission will be free
Evening lecture, followed by Q & A
Following the event the Society’s bar will be open
With the Orphan Works Bill due for resurrection, with Getty slashing prices for stock imagery, with millions of dollars of illustrators' reprographic royalties going unaccounted for, six artists groups have banded together as a new organization to take action. Purpose: to create an industry-wide mandate to protect artists rights and to speak as an industry with one voice.
This new organization The American Society of Illustrators Partnership (ASIP) brings together the following groups:
The Society of Illustrators
The Illustrators' Partnership of America
The Association of Medical Illustrators
The American Society of Architectural Illustrators
The Guild of Natural Science Illustrators
The San Francisco Society of Illustrators
Six other groups are pending members and other groups are invited to join.
On Feb. 21 ASIP will introduce itself at the Society of Illustrators, hosting An Evening with Bruce Lehman
Mr. Lehman is one of the world’s leading experts on intellectual property: Principal author of the 1976 Copyright Act, principal author of the Digital Millennium Copyright Act, former US Commissioner of Patents and Trademarks. In 1997, the National Journal named Lehman one of the 100 most influential men and women in Washington. Mr. Lehman was keynote speaker at the first Illustrators Conference in Santa Fe, 1999. For more about Mr. Lehman, go to http://www.iipi.org/nav_about/boards.asp#Honorable_Bruce_A._Lehman
This event is timed to coincide with the Society of Illustrators Editorial and Book Gala Feb 22. So if you’re planning to attend the opening, please attend this important open meeting the day before. Bring your questions, socialize with your colleagues and learn what steps we need to take next as an industry.
The American Society of Illustrators Partnership is a non-profit organization, incorporated October 25, 2007. Executive Director is Terry Brown. The Board is composed of representatives from each of the six Founding organizations.
If you are a member of one of the above groups, you are automatically eligible for joint membership in this new alliance. If you are not affiliated with any current group you’re welcome to join ASIP independently. There is no membership fee.
For more about this new alliance for protecting artists’ rights, listen to Steven Heller’s interview with Brad Holland:
http://www.core77.com/blog/broadcasts/core77_broadcast_brad_holland_on_intellectual_property_interviewed_by_steve_heller_6714.asp
An Evening With Bruce Lehman is sponsored by the Society of Illustrators and the American Society of Illustrators Partnership
Please post or forward this email in its entirety to any interested party.
Monday, January 28, 2008
Frustration
This illustration is for next month's Flying Magazine article on "Glitches" .
The folks over at Flying have been great to work with and are always very accommodating.
It's great for illustrators when you work with people like Al Struna, Andrew Becker and Nelson Cupples. It just helps push you to make your work better.
I have been working with all of them for about three years now and every assignment has been interesting to do.
Thursday, January 24, 2008
Colonial Dry Sink with Wine Holder
This was a very nice project just completed. It is a pine Colonial dry sink painted red and black with a crackle finish on the interior sink area and back panels. The client, a wonderful family in Marshfield MA. asked to have included with the sink, a wine holder that looks like it was part of the distressed sink that could sit out on the table when they entertain.
I am now going to make one of the holders for friends since I loved the piece so much...
Friday, January 18, 2008
Illustrator's should be paid for their work
Illustrators in the United States have never received the income they earned from having their work reproduced overseas.
While other countries already have a system in place to return fees to artists, American artists have been thwarted at every attempt to have these earned fees paid directly to the artist. In fact many do not know these fees are being misdirected and distributed to organizations without their consent.
One such organization called the Graphic Artist's Guild has been receiving artist's fees for a very long time with no accountability and especially with no mandate by artists.
Amid their own claims that they have "grossly mismanaged funds" that has "lead them to the brink of bankruptcy", I fear these funds will continue to be diverted to fund organizations such as GAG, instead of to the artists who have earned these fees by creating the original work.
There is a growing foundation of seven organizations called the "IPA Reprographic Rights Coalition" who have been asking for accountability regarding the use of these industry funds. Not surprisingly they are having a hard time changing a bad habit in the states, even if other countries already are returning fees to artists.
Time will tell if enough people will listen to these true artist's organizations or if the money will only continue to fund an organizational revenue stream to make up for "gross mismanagement".
It is common sense. Reprographic royalties are the earned income of all published illustrators and these fees should go not to any one group but only to the artists who create the images.
Check this link out for more or click on my link for the Illustrator's Partnership:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00257
Wednesday, January 16, 2008
WCVB's Chronicle
On Friday January 25th at 7:30 Chronicle will feature a short segment on my studio. If you are able to view the television show I hope you tune in.
LBA Advisor
My God, things have been very busy here.
I will be uploading a ton of images and info in the coming days to make up for a lack of blog posts since the summer. But for now, here is the cover for the Latest LBA Advisor from Broadbased Communications. First time I ever drew a lion and I like very much how it came out.
I have been working on new furniture pieces and illustrations over the past three months. Now if I get a break I will try and show you what the studio is up to.
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