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Mar. 1st, 2006

Wow... OK, this just scares the pants off of me.


The Orphan Works Express

Congress is scheduled to commence Orphan Works hearings the first week in March.
They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.
The spin that’s being put on this legislation is shrewd. Special interest groups have re-defined copyright users as “creators” of “transformative works.” They're trying to persuade lawmakers that these “creators” - and therefore, creators in general - are being hampered because of obsolete protections on work which has “little or no commercial value.” Yet the omnibus measures proposed in this Report would affect any work - old or new –that’s been published without identifying information. This would apply disproportionately to illustrations and photographs.  We need to make it clear to congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.

Orphan Works legislation would be retroactive. This means that all the work you’ve done during the last 28 years could fall into the Orphan Works category if it was ever published without “relevant information” on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture you’ve ever done – published without “identifying information” on it - or with that information removed by others – to justify an infringer’s claim that he was unable to locate the author. The same thing would be true, of course, for future work.

Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer –if detected - is that a court might make him pay you a “reasonable fee.” This means there’d be no real downside for infringing. For 28 years (since the 1976 Copyright Act went into effect), you’ve been told that your work was protected “from the moment you put pen to paper.” No more.  And artists who for 28 years produced work with the confidence that it was protected by that promise will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades.
The plan in a nutshell. For years, Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright “formalities” such as marking and registration. This would aid the spread of “free culture” because most artists would fail to mark and register their work (or marks could  be removed). This would make a vast number of illustrations and photographs royalty-free for anyone to use - or for companies like Google to sell access to.
Unfortunately for the free culturists, the US can’t re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt  American trade.
So the Copyright Office has crafted their orphan works proposal as a “limitation on remedies.” This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without “relevant information” on the picture itself. In effect, this would force artists – as a hedge against infringement – to re-impose on themselves the “formalities” the government can’t. Any artist who didn’t mark his work would expose it to no-fault infringement  - a very clever way to re-impose formalities without actually putting it in writing.
Remember, this is all being done in the name of promoting creativity by artists. That’s why we, as artists, will have to speak up in numbers. We have to show lawmakers that the Free Culture movement - and the creative wannabes who comb the internet looking for royalty-free work - do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.

What you can do. In their effort to speed this legislation through Congress, the plan's shepherds are severely limiting testimony for and against it. That’s why your letters are important. Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don't have to write a complicated letter, but it's important that you make certain points:
-Make it clear that you’re an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.

-Make it clear that you will never have the resources to police infringement of your work - which could occur at any time anywhere in the world.

-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.

-Make it clear that your work has significant commercial value.

For artists, this legislation would be a major revision of copyright law. The Orphan Works Report calls for a 10 year “sunset provision,”  which means that Orphan Works legislation – once passed - will not be subject to reconsideration for another10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them. And after 10 years of copyrighted work turning royalty-free, the market for art will be so deformed – and expectations in the marketplace so settled – that there’ll be no going back. We can’t wait until this law gets “reviewed” 10 years from now to express ourselves on it.  

 The government should not be allowed to create a royalty-free stockhouse out of artists’ work. Please write as soon as you can.

-Brad Holland, for the Board of the Illustrators’ Partnership

To write Congress: Follow the instructions Cynthia Turner has outlined on the IPA  website:  
http://www.illustratorspartnership.org/04_forums/index.php See forum entitled: Write Congress: Questions and Answers.
You may post responses or ask questions on these forums. First-time users will be asked to register. 

-For additional information, also see: “Call To Action To Prevent The Orphan Works Amendment To Copyright Law”
and Free Culture-The Copy Left Is Not Right.”

This email may be posted and/or forwarded in its entirety to any interested party.

I don't agree with everything it says. For instance, it singles out Creative Commons advocates. Creative Commons is a voluntary license artists who want to release their work for free public consumption can use to avoid yielding all their rights to the material and allow them to enforce their copyright against people who use the material without giving proper credit. Think GPL for works of art.

The important point is, it's the artist's choice. The measure before Congress right now removes that choice. I support Creative Commons, and I'm against this measure.


( 6 comments — Leave a comment )
Mar. 1st, 2006 07:41 pm (UTC)
Rar. That font sure is large.

It should be noted that bloggers apply too, even if you don't consider yourself to be an "artist." So *as I understand it* (<- opperative. Obviously this stuff is fuzzy at the moment), under the Orphaned Works, if someone were to take a post you made, re-post it, not credit you, and make money off it or do something equally nasty that you could take them to court for (and the court wouldn't just laugh at you and tell you to deal with it yourself), you couldn't sue them unless you'd been properly copyrighted.

It is important to note that the official discussions on this topic are closed, so I don't know how much letter-writing is going to do at this point.

If you're reading this and you're concerned about it, you can still write your letters, and you can always spend the $30 and register your work through the federal channels. Copyrights are supposed to be free and automatic without registering at Copyright.gov or Creative Commons, but in the event that everyone and his mom is sticking a (c) or (cc) on your work, and you loose technical proof that the work is indeed yours, or if Creative Commons gets nixed, I still think it's prudent to have a backup plan.

I guarantee if you're on the internet for awhile, infringement will happen to you, and is probably happening to you as we speak. I've had some particularly nasty disputes (on both sides of the fence), and all I do is make websites and write down my ideas.
Mar. 1st, 2006 09:14 pm (UTC)
Sorry about the size of the font... It's a cut-n-paste job, and I didn't want to monkey around with it.
Mar. 1st, 2006 09:38 pm (UTC)
Meh. Ctrl+minus, baby! <3 Firefox.
Jul. 1st, 2006 09:25 am (UTC)
Time to Act

Time to Act
Artists and photographers have been joined by writers, textile manufacturers and others in realizing the threat of the Orphan Works Act of 2006 (HR5439). As we continue to spread the word, it’s time again to act in concert. Others in related fields will be doing the same. Starting in about one week – as soon as Congress returns from its Fourth of July recess, we’ll be emailing lawmakers in numbers. This notice is to give you time to get your letters ready.

First, we’re asking each of you to write your Congressional representative. Please note in your first paragraph that you are a.) a constituent; b.) a small business owner; c.) opposed to the Orphan Works Act. You can identify your representative by entering your zip code into http://www.congress.org

Second, please write to members of the House Judiciary Committee.
They can be located on the IPA Orphan Works Resource Page: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00175

Several members of the Judiciary Subcommittee are particularly important because they’ve already shown an understanding of the concerns we’ve expressed in previous letters. Please thank them for this and ask them to vote against this bill or table it until it an be properly re-considered and amended. Here are some of their names:
-Howard Berman (CA, 28th District)
-Darrell Issa (CA, 49th District)
-Bob Goodlatte (VA, 6th District)
-Howard Coble (NC, 6th District)
-John Conyers (MI, 14th District)

Below is one suggested sample letter. We’ll email you two more. Use any of these texts you like and feel free to modify them as you choose. You can edit, copy and paste the text of these letters onto your letterhead for faxing. In the letter below please insert an introductory sentence. Again, if you are a constituent, say so at first and cite your profession. Because the bill is being fast-tracked, it’s critical that we write now. To join us, get your letter ready for sending the week of July 10.

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

Please post or forward this email in its entirety to any interested party ____________________________________________________________________________

Jul. 1st, 2006 09:27 am (UTC)
Time to Act continued


The Honorable ______ ____________
U.S. House of Representatives
Washington, DC 20515

Via Facsimile
RE: HR 5439

Dear Rep ______________,

(INSERT INTRODUCTORY SENTENCE(S) HERE) As a small business owner, I am writing to express my grave misgivings about the Orphan Works Act of 2006 (H.R. 5439), now before the House Judiciary Committee. I strongly oppose this bill.

The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It was drafted to allow museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who have died or abandoned their copyrights. Unfortunately, it would do this by legalizing the infringement of all works - old and new, registered or unregistered, published or unpublished, domestic and foreign, managed or abandoned, whenever a work is unmarked so long as an infringer asserts that he or she has made a “reasonably diligent search” to find the rights holder.

This would expose to misuse countless works of visual art because clients often require artists to omit identifying information from their work, or because credit lines can be removed by feckless or unscrupulous users. Not only artists, but industries which license art can be harmed by this carte blanche license to infringe.

In the interest of brevity, I am enclosing some basic objections I and other copyright holders have to this bill.

• The Act is written so broadly that its use cannot be confined to orphaned work situations.

• It would permit an infringer to determine when he or she has made a “reasonable effort” to locate me even though the infringer would have a financial interest in not locating me.

• It would be retroactive, which means that work I created under existing law would be exposed to infringement because I didn’t take steps to protect my copyrights which the Copyright Act never required me to take.

• It would expose my work to infringement immediately upon creation, even though I am alive, in business and managing my copyrights.

• It would place an impossible burden of diligence on me to protect my work because I will never have the resources to police infringement, which can occur anytime, anywhere in the world.


Jul. 1st, 2006 09:29 am (UTC)
Time to Act continued
• It would remove any meaningful remedies for infringement, even though the threat of meaningful litigation is the only means I now have to enforce copyright compliance.

• It would impose on me the burden of proving in court the amount of “reasonable compensation” I could collect from someone who has infringed my work as an “orphan”.

• But it would limit “reasonable compensation” to whatever sum an infringer is willing – or able – to pay.

• It would deny me injunctive relief in situations where the entirety of my “orphaned” work has been used in a so-called “transformative” work.

• And it would undermine my option to retain or sell exclusive rights to my clients because neither I nor my clients could ever guarantee that the work would not be used by others – even for purely commercial purposes.

• The inability to retain or sell exclusive rights would greatly decrease the market value of my work because market value is determined by the licensing potential locked up by exclusive rights.

• This bill would prevent me from restricting certain unwelcome uses of my art.

• And it could drive my work into low-end markets where I would otherwise never license my work.

• At present, the law does not allow infringers to claim my work by infringing it, but this legislation would let them.

• Yet by “limiting remedies” the bill guarantees that the cost of suing an infringer could exceed whatever sum I might recover in a successful court action.

• While the bill would limit the amount I could recover from an infringer, it would set no limits on the amount an infringer could win from me in a counter suit.

• And while the bill would not legislate “formalities”, it would have the same effect, because it would require artists like me to rely on marking, registering and meta-data as a condition of protecting our property.

• This would violate the Berne International Copyright Convention and fail the three-step test of TRIPs, which requires that exceptions to an artist’s exclusive rights should be limited to certain special cases, not interfere with an artist’s normal exploitation of his work and not prejudice a rights holder’s legitimate interest.

In short, the Orphan Works Act fails to properly define the category of orphaned work and it sets the infringer’s bar of due diligence so low that it virtually guarantees abuse.

It would force into the courts countless business decisions which should be made in the marketplace, and create problems which do not now exist but which would require the expansion of the entire Federal judiciary system to solve.

For those and other reasons, I ask you to consider the harm this bill can do to existing businesses and vote against it unless it is amended to do the following things:

a) Precisely define an orphan work as a copyright which is no longer managed by a rightsholder;
b) Raise the infringer’s bar of due diligence and define precisely the steps a user must take before infringing a work;
c) Eliminate the unrestricted use of a copyrighted work in a “transformative” work;
d) Restrict the use of true orphaned works to not-for-profit uses;
e) Restore full remedies for infringement as the only means rights holders have to protect their intellectual property.


( 6 comments — Leave a comment )