Friday, May 09, 2008

*IMPORTANT* help defeat Orphan Works Bill!!!!!

(as copied from an email I just sent): Attention everyone who is an artist/photographer/writer, or knows one, or cares about the arts! This is not just some random thing I am sending, this is really really really important, like "could potentially really screw artists" important. I am forwarding pieces of several emails I have received about the Orphan Works Bill. The other emails can explain much better than I can, but it's really important to act now and defeat this. I will be writing and faxing letters TODAY!

PLEASE oppose this bill. The link below has all the info, and letters that you can just click and send. PLEASE PLEASE PLEASE.



There's a bill that's been put forward in both the house and the senate called the Orphan Works Bill. Basically it destroys the copyright protections now in place for artists of all media - visual, literature, performing.

here's a portion of one of the letters that explains the situation much better than I can:

"I would like to make it clear that I am not opposed to usage of orphan works by the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education. But this legislation makes no limitations for these purposes, and will dangerously expose my art to infringements while stripping me of any practical means to protect my work. The bills have been written so broadly it will endanger the rights of anyone who creates intellectual property. Although the Senate and House bills differ slightly, the effect of either would be devastating to freelance artists and photographers, as well as to the licensing and other collateral small businesses that serve, and are dependent on, creators.

What’s worse is, there is no real need for this bill. Under current law, not-for-profit organizations such as libraries, museums and others are already permitted wide use of orphaned works. If they believe they need greater latitude, then a limited exemption should be written to meet their specific needs.

As for commercial users, what’s the downside for those who can’t find the owner of a copyright? If commercial publishers, for example, are uncertain about a work’s copyright status, they can hire an artist to create a new work of art. They’ve been doing it for hundreds of years. Creating new work stimulates the economy. It doesn’t depress it. And stimulating creativity has been one of the traditional goals of copyright law.

I ask you to consider the harm this bill can do to visual artists and vote against it unless it is amended to precisely define an orphan work as a copyright no longer managed by a rights holder."

this is a website where you can point and click and send a message to those who represent you that this bill is NOT a good idea and that it will HURT artists.

Please go to this site and join the artists in your communities who oppose this legislation. Thank You


1. Write a letter to your congressional House leader
and Senators stating your opposition to the bills.
Send the letter both by e-mail and fax.

2. Help raise awareness about the potential
consequences of this
legislation, and ask everyone you know to write and
send letters.

A number of groups which oppose this legislation are collaborating on
creating a website which will enable you to e-mail your congressional
leaders with the push of button. It will also contain sample letters. I will
post the link as soon as the site is live.

The main reasons to object to this legislation are
listed below. In case any
of you want to start work on your letters before the
sample letters are
published, I've also included additional information
to help you explain and clarify these objections.

*1. It changes the 1976 U.S. Copyright Act (enacted in
1978), and makes it
virtually impossible for artists to protect their
work. It basically allows
anyone to use a design without the copyright holder's
Under current law, you receive basic copyright
protection even if you don't
register your work.* Under Orphan Works law your work
could be declared an
orphan even if you have registered it. *Congress, in
enacting the Copyright
Act of 1976, provided that copyright exists in the
creation of any work that
is copyrightable subject matter, regardless of whether
or not the owner has
performed any legal formalities, such as registration,
or copyright notices,
or taken any steps to protect or defend the copyright.
Since 1978 (when it
was enacted) many creators have relied upon the
Copyright Act of 1976, and
employed business practices based upon the protections
it offered. The
proposed Orphan Works Act of 2008 would have the
effect of depriving certain creators of the ability to
enforce their copyrights because they did not take
steps that the Copyright Act of 1976 did not require
them to take. *In essence, it** **will give infringers
the legal means to use a design without the copyright
holder's permission.*
* *
*2. It requires artists to attempt to protect their
work by registering it
with a digital data base system (presumably for a fee,
in addition to the
copyright filing fee)-when no such system exists!*
The proposed legislation is predicated on the
establishment of private,
profit making registries that would establish
databases of digital versions
of artworks and provide a place for infringers to try
to locate the artist,
BUT* it will be enacted whether or not these data
bases ever come into
existence.* This will relieve the infringer of
liability if he simply
attempts a search that cannot possibly be performed successfully.

In addition, the legislation places no limit on the
number of these
registries or the prices they would charge. *The
burden of paying for
digitization and depositing the digitized copy with
the private registry
would presumably fall entirely on the artist,** **and
even if an image is
contained in the registry, as long as the infringer
"looks" without finding
it, the infringement is allowed. *There is no
liability imposed for the
failure of a database to find an image registered in
that database when it is searched, and no requirement
that all available databases be searched,
thus potentially requiring multiple registrations (and
multiple registration
fees). Also there are no safeguards to prevent any
person or company from
fraudulently registering work they do not own.

*3.** **It eliminates statutory damages wherever an
infringer can
successfully claim an orphan works defense, thus
eliminating the only tool
the law provides to prevent deliberate infringement. *
Current law almost certainly deters *rampant
infringement* because the
present remedies - damages of up to $150,000 per
infringing article-- make
infringement risky.* By "limiting remedies," the
Orphan Works amendment will
effectively create a no-fault license to infringe.*

*4. It allows for an infringer to create-and
copyright-a derivative work
from the original design.*
Under current law, the right to create a derivative
work is one of an
artist's exclusive rights. Section103(a) says a user
can't copyright a
derivative image that he's infringed. *"Protection for
a work employing
preexisting material in which copyright subsists does
not extend to any part
of the work in which such material has been used
unlawfully." *Under the
proposed new bills, since the entirety of an infringed
work can be included
in a derivative use, then the copyright of the
derivative will amount to a copyright of the original.
This would be a *de facto* capture of new
exclusive rights by the infringer. In other words,
*these bills allow
infringers to make and copyright derivatives-even if
the copyright holder to the original work objects.*

If this legislation passes it would mean a return to
pre-1976 U.S. Copyright
Act when many artists' works fell into the public
domain because they could
not afford to comply with the formalities of
registration as a condition of copyright protection.
This violates the trust under which American artists
have worked for the last 30 years, and nullifies our
U.S. Copyright
registrations. Further, it is against the Berne
Convention, and invites
retaliation from around the world because
international artists' works are just as vulnerable to infringement under
the U.S. Orphan Works Act.

Now let me recap the current situation:

The Senate has only given a few days for comments on
the bill to be made;
they are due Wednesday, April 30th. The House has not
specified a
time-frame, and may give as little as 24 hours notice
before closing the
window for comments. There are several loosely allied
groups which are
opposing the legislation. These include The
Illustrator' s Partnership
(illustrators) , The Artists' Rights Society (fine
artists), The Advertising
Photographers of America (photographers) , the Artists Foundation (fine
artists), the Textile coalition (4 textile groups) and the Industry
Coalition (whose members include the Craft and Hobby Association and George
Little Management). During an OW strategy session Friday afternoon, Corrine
Kevorkian, counsel for textile giant F. Shumacher, shared that the Textile
coalition intends to recommend to the Senate that they adopt the House
version. If this happens, the Textile industry will be spared the draconian
impact of the Orphan Works Act because the House version exempts useful
articles (see #1 below). She also intends to emphasize that the legislation
shouldn't take effect until the electronic data bases actually exist.

Although the bills are similar, there are some
important differences to
note. Both are devastating to all visual artists, but
the House bill is
somewhat less objectionable. Here are the three main

1. The House bill includes an exception for useful
articles, which (as far
as I can determine) means that products (such as
textiles and mugs) which
are functional whether or not design has been applied
to them, will not be impacted by this legislation.

2. The House bill also requires that manufacturers
file their intention to
use an image before they can use it --although it does
not (a) specify a time period or method for doing so,
(b) does not require an image to be included, only a
verbal description (the Mona Lisa, for example could
described as "a dark-haired woman with an unusual
expression" which would
supposedly allow Leonardo to identify his work), and
(c) does not require
the filings to be readily searchable to allow an
artist to monitor
unauthorized uses of his/her work.

3. The House bill allows for a longer (possible) time
period before
implementation: January 1, 2013 vs. the Senate bill
which uses the date of
January 1, 2011. Unfortunately both bills are
scheduled to take effect on
the *earlier* of: *"the date on which the Copyright
Office certifies under
section 3 at least 2 separate and independent
searchable, comprehensive,
electronic databases, that allow for searches of
copyrighted works that are
pictorial, graphic and sculptural works, and are
available to the public
through the Internet; *or the January 1st, 2011 or
2013 listed by the
respective bills. *This means that if there is no
visually searchable
database operable before the date(s) listed, the
legislation goes into
effect anyway! *

If you would like additional information on the
potential impact of this
legislation, you can learn more by
a. Reviewing the submission to the House by the
Illustrator' s Partnership

b. Listening to Brad Holland's informative webcast: **.

This is a very serious situation, and will require a
concerted effort on all of our parts to stop it. I'm
glad to see so much posting going on. and I believe
that together we CAN make a difference. I'll be in
touch as soon as I have more information.

*This may be forwarded in its entirety to any
interested parties.*

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