Mind Your Business: You Will Lose All The Rights to Your Own Art

[Jeff Mottle]

READ THIS VERY CAREFULLY. IT AFFECTS THE COPYRIGHTS TO YOUR WORK.

 

 

I thought I would pass along some links that should be of great interest to EVERYONE on this forum. Please take the time to read all of this and view all of the links.

 

There is a new Illustrators partnership that is working to fight this new orphaned works bill and to reclaim monies held in escrow from royalties collected on orphaned works. I'll be posting some more documents and info on this shortly.

 

http://mag.awn.com/index.php?ltype=pageone&article_no=3605

http://www.sellyourtvconceptnow.com/orphan.html

 

 

 

FROM THE AMERICAN SOCIETY OF ILLUSTRATORS PARTNERSHIP

 

Here’s the link to the web cast video of An Evening With Bruce Lehman:

http://www.unitedpgremote.com/society/soi_2008_02_21.html

 

The house was full for what turned out to be a dramatic evening event. Mr. Lehman’s presentation was eye-opening and forceful. The 12 major illustrators organizations came together in an unprecedented act of unity.

 

Although accountability of current artists’ reprographic royalties was not intended to be the evening’s topic, events made them so. Watch the video and see for yourself why so many attendees have called this forum a long-overdue wake-up call.

 

The town hall capped a series of day-long meetings at which the 12 groups met with Mr. Lehman to discuss options and strategies. The groups voted unanimously to seek the first industry-wide mandate to represent illustrators rights.

 

To achieve that, the members of each group will be offered automatic joint membership in the American Society of Illustrators Partnership. Published artists who are not members of any group may join ASIP directly. We’ll notify you when and where membership forms are available for downloading.

 

The following 12 groups were represented:

 

 

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 Pittsburg 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

 

We invite other groups to join ASIP.

 

An Evening With Bruce Lehman was sponsored by the Society of Illustrators and the American Society of Illustrators Partnership

 

 

About Bruce Lehman

 

 

One of the world’s most widely-respected experts on intellectual property, Mr. Lehman will advise the Summit during the day-long meetings. At the Open Forum, he will address the subject of copyright protection in the internet age and answer questions. For more about Mr. Lehman, go to http://www.iipi.org/nav_about/boards.asp#Honorable_Bruce_A._Lehman

[ikinman]

Many thanks, Jeff, for posting on this. NYSR is in the process of joining ASIP right now. Anyone who is a member of ASAI or NYSR will then automatically be able to become part of the solution to this problem.

 

I highly recommend that everyone read the first article that Jeff links to - it is an excellent summary of where things stand right now, and how important this issue is to all of us.

 

-Ian

[Horhe]

...

 

 

 

I am speechless... what the hell is going on with the world these days...

 

Do you know who owns Corbis? Bill Gates. He doesn't do anything unless it can make a huge amount of money. Helping you lose the copyright to your art is big business for Gates.

 

Something definetally has to be done about this.

This like a plague will travel accross the world. Starting in USA then Europe (it states in the article that Europe is being brainwashed into this too little by little...)

 

Due to this we will lose our rights for what? For Bill Gates and Google to make loads of money...

[aaron-cds]

I'm deleting my flickr account

 

Seriously, this is scarry stuff.

[SandmanNinja]

Bill Gates went out (years and years ago) and bought the digital rights to a good chunk of the world's great paintings. In his house, he has digital canvases and when a person enters a room, their favourite painting 'follows' them into that room. I guess the higher-ranking person's preferences wins if there is a contest, or maybe they split up the number of digital canvases. (people have an electronic badge that identifies them and tracks them)

 

So, the groundwork for this latest thing can be traced back to that event those years ago.

 

I hope things go well for "us", but big money makes things happen and he has infintely deep pockets...

[Inxa]

Thanks Jeff.

 

But does this mean you need to register everything that is created. A smallest of a image to the largest that one artist creates.

 

How does this work in other countries for e.g. in Asia.

[Jeff Mottle]

Thanks Jeff.

 

But does this mean you need to register everything that is created. A smallest of a image to the largest that one artist creates.

 

How does this work in other countries for e.g. in Asia.

 

Right now this bill I think only applies specifically to the US, but if it passes it will undoubtedly have a major impact on how copyright is handled around the world. If it does pass, it does sound like you would have to register your work at every register that exists as you don't know which one will ultimately win and become standard.

[quizzy]

also read the other side of the story....

 

http://www.boingboing.net/2008/04/12/countering-the-fud-a.html

[Sawyer]

So there is no legislation? There is no fear of loosing rights?

 

There seems to be a lot of info about Simon's article but less about the bill. Some claim there is nothing but I found that there is a bill being drafted:

 

http://www.asmp.org/news/spec2008/orphan_update.php

 

It may be simular to the 2006 law or it may have different language:

 

http://www.asmp.org/news/spec2008/orphan_update.php

 

Much of Simon's comments may be wrong:

 

http://kynn.livejournal.com/799971.html

 

 

Subcommittee hearing on Orphaned Works:

 

http://judiciary.house.gov/oversight.aspx?ID=427

[blowback]

I guess what scares me is that anytime something like this changes. It's never a good thing for the individual artist. Mega "CO-CORP" never lobbies the government to make positive changes for the working individual. Why would they.....less profit. Scary. I am not sure what to belive...but my instinct and history tells me this has the potential to be bad.

[quizzy]

its really something not to be ignored, but there is no bill yet. And ofcourse we can prepare, so all of us can act directly when it comes out..

[Garrett Gray]

Thanks for the information!

 

"United we Stand" and stand we must! I urge artists to be informed of what is taking place in today's world and to STAY informed. The world is changing and many want something for nothing and this bill (if it becomes such) must die before it ever reaches a vote.

 

CONTACT YOUR LEGISLATOR:

Go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone number, address and e-mail of every U.S. senator, U.S. representative, governor and state legislator.

 

GET ON ORPHAN WORKS E-MAIL LIST

To be notified of the latest information on the Orphan Works bill and when to contact your legislators, send an e-mail and ask to be added to the Orphan Works list. (This can also be found in the AWN article)

 

BE DILIGENT!

[gfa2]

Much of Simon's comments may be wrong:

 

http://kynn.livejournal.com/799971.html

 

I find this article just as interesting....does anyone have anything to say about it?

[Tommy L]

This is a disgrace and the animals behind this should be ashamed of themselves. Ive never been particularly motivated by anything in politics, but this makes me want to start a revolution..........

 

............assuming its true, but having read the link Gary Allison put here, I inclined to think that I may have to do some reading.........

[Jeff Mottle]

This was sent to me today, so I thought I would pass it along for additional reading:

 

Six Misconceptions About Orphaned Works

 

My friends list today has been swept by a storm of fear, uncertainty and doubt surrounding this article by Mark Simon on Animation World Network about the issue of orphaned works. "Orphaned works" are creations likely still under copyright -- photographs, illustrations, written works, music, &c. -- for which the original creator cannot be found, and thus their copyright status cannot be determined. Orphaned works present a thorny problem in today's litigious society, because when the question of "who owns X?" can't be answered, very few people are willing to do anything with X if they fear that they'll be sued for it.

 

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

 

Or what if you're cleaning out your great-aunt's attic, and you find a box full of pictures of your town as it was 100 years ago? The local history museum would love to add them to its collection -- but it can't, unless you, your great-aunt, or somebody can track down the original photographer and secure his or her permission (or the photographer's estate's permission, if the photographer's dead) to donate the photos. (Copyright in the United States lasts for life of the creator plus 75 (EDIT: 70, for works created today, older works are weird, see here for details; thanks for the correction, internets) years, so chances are, even 100-year-old photos are still under copyright. Thank Disney for that one, guys.)

 

But Mark Simon apparently believes that enacting legislation to handle orphaned works in a way that protects people who legitimately try to find the original copyright holder, but can't, will lead to the effective invalidation of copyright on ALL UNREGISTERED ART EVERYWHERE OMGZ CALL OUT THE CAVALRY. His article, which I linked above, is miserably poorly researched, jumps to completely illogical conclusions, and, most retardedly of all, implores artists to letterbomb Congress in protest of proposed legislation which does not actually exist. Someone please tell me where this guy is getting the crack he's smoking, because I want to avoid that streetcorner and everything in a six-block radius, kthx.

 

So, here are six misconceptions that are making the rounds about orphaned works, and a short explanation of why each one is a misinterpretation or just a flat-out lie. I also give links to useful supporting material, and resources you can use to keep track of this issue as it evolves.

 

1. "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"

 

Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet. That gives you, artists and authors, time to get familiar with the actual legislative landscape, research what might be proposed in a bill, and decide for yourself what position to take.

 

Back on March 13, Marybeth Peters, the Register of Copyrights, made a statement before the House Subcommittee on Courts, the Internet, and Intellectual Property. It discusses orphaned works in detail, and mentions previously proposed legislation that expired when the 2006 House session closed. It was never voted on.

 

I advise everyone to read Ms. Peters' statement. It's long, but it's in plain English. (Okay, she does like to use big words. But it's not legalese.) If you read it, you'll see that the Copyright Office is in fact concerned about how to handle orphaned works in a way that's fair to original copyright holders. I especially recommend you read the section titled "The Proposed Solution". Read it carefully. It's pretty clear that Mark Simon didn't.

 

If you want to keep an eye out for upcoming legislation that might affect this issue, THOMAS is a great place to start. I'm also a big fan of GovTrack, which scrapes THOMAS and sorts bills into categories based on topic -- you can even get RSS feeds of bills related to the topics of your choice.

 

2. "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"

 

That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists "from the time the work is created in fixed form" -- in other words, the instant I hit "post" on the form I'm typing this blog post in, the instant you step away from the canvas, the instant you hit "save" in Photoshop, that work is "in fixed form" and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

 

The Copyright Office considered the idea of a registry, but shot it down (emphasis mine):

In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work.

In the same paragraph, Ms. Peters also noted that the Copyright Office finds it important for any new legislation to cover both published and unpublished works. Existing copyright law, as we saw above, covers all works from the moment of their creation.

 

It is already possible to register a copyright with the US Copyright Office. It is not required, but registering a copyright gives you a few advantages in the event that someone illegally copies your work. If your copyright is not registered, you may claim "actual damages and profits" -- i.e., the value of the work. (I think this also means that you can recover whatever profits the infringer made by using your work illegally, but I'm not sure about that, and I'm not a lawyer, so don't quote me on that one.) If your copyright is registered, you may also claim statutory damages (between $750 and $30,000 per work -- up to $150,000 per work if you can demonstrate that the infringment was willful, i.e., the infringer knew the work was copyrighted but used it anyway) and attorney's fees -- in other words, if you win the case, the infringer has to pay your lawyer for you. (Whee!)

 

But, again, there is nothing that indicates that registration will be required. Either Mark Simon read Marybeth Peters' statement wrong, or he made it up.

 

3. "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"

 

Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it.

 

Now, Mark Simon seems to be flipping his shit over Ms. Peters' recommendation of

a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.

Perhaps he's envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a "good faith" search and forges ahead with an infringing use. That's not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work's original owner, the "good faith" provision doesn't apply. And even if the "good faith" provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.

 

It's all there in writing, folks. This isn't that hard.

 

Now, the Copyright Office also proposes a "safe harbor" provision for very specific cases:

a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement.

In other words, if someone infringes your work for nonprofit purposes and you pop up and say "um, no, that's mine," they must immediately take it down. Otherwise, the safe harbor provision does not apply, and they must compensate you for their use of the work. Furthermore, if they don't immediately take it down, they're also subject to the No Electronic Theft Act, which sets out the damages I described above and also establishes criminal penalties for copyright infringement, even when no money changes hands. Nobody is suggesting that the NET Act should go away either.

 

The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple.

 

4. "Someone else could register the copyright on my work, and use that against me!"

 

Nope. Under US copyright law, only the author of a work, a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author, the owner of exclusive rights (i.e., someone to whom you have transferred copyright under a "work for hire" agreement), or the duly authorized agent of one of the above may file for copyright registration.

 

Again, I'm not a lawyer, so I can't speak with any authority on what happens if somebody illegally registers a work for which they don't own the copyright. An illegally registered copyright will almost certainly have its registration revoked (freeing you up to register it yourself, if you so desire). The application form also states that "any person who knowingly makes a false representation of a material fact in the application for copyright registration .... shall be fined not more than $2500." Check out Title 17 of the United States Code, section 506(e) if you want to know more.

 

5. "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"

 

Honestly? This is the state of things already. As I pointed out to karine, the Copyright Office does not employ an elite squad of cybercops searching night and day for infringing uses of copyrighted works. They don't have that kind of money. Identifying infringing uses, sending the infringer a takedown notice, and bringing legal action if the infringer refuses to stop infringing are already your problems. They will continue to be your problems for the foreseeable future.

 

I've also heard some FUD claiming that if someone infringes your copyright and you don't catch them within a certain period of time, you won't have any legal recourse. I have no idea where this misconception came from, but it's also wrong. The important thing to remember here is that copyright is not trademark. Trademarks can be lost if they're not enforced, but copyright is forever (ok, life plus 70). "Well, so-and-so infringed and you didn't sue them!" is not a legitimate defense. Neither is "I've been using this for the last N years and you never said anything!" If you catch someone infringing your copyright at any point in your life, or your estate catches them at any point up to 70 years after the date of your death, you do have legal protection.

 

6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"

 

This is quite possibly the most ludicrous claim that's being bandied about. According to the Copyright Office, public display of a work does not even constitute publication -- you have to sell copies, or tell other people they can distribute copies, in order for the work to be considered "published". (EDIT: what I tell you three times is true, I am not a lawyer. The Copyright Office's FAQ does not opine about content displayed on the Internet, but you're probably better off disallowing redistribution anyway if this is something you're concerned about.)

 

Furthermore, as we've discussed above, a work need not be registered with the Copyright Office, or with a private registrar, to be covered by copyright, so if someone infringes on your work and you send them a takedown notice, the work is not orphaned. Full stop. I cannot repeat this enough times.

 

Copyright is automatic and does not change unless you transfer your copyright to someone else, die (in which case it's automatically transferred to your estate), or commit the work to the public domain. "Orphanedness" is a state which gets removed when the copyright holder speaks up. Even placing a work under a distribution license, such as a Creative Commons license, doesn't change the fact that you own the copyright.

 

Also, for those of you considering formal registration with the Copyright Office to have the option of statutory damages, here's a neat loophole you can use. Unpublished works can be registered as a collection, as many works in the collection as you want, in a single filing, for one filing fee of $35. Since merely putting your artwork up for display on the Interwebs doesn't constitute "publication", you could register "All My Artwork From The Last Ten Years" as an unpublished collection for a whole $35, and sue the pants off anyone who infringes anything in that collection. (This would also be a fun way to test whether the Copyright Office considers works displayed on the net to be unpublished. If you try this out, do let me know!)

 

---

 

I hope this addresses any fears you might have about orphaned works and the sort of legislation that might come up regarding them. If you have any questions, please feel free to comment and I'll do my best to answer them. Likewise, please feel free to link this article or reproduce it in full or in part; I am placing it under the Creative Commons Attribution-Noncommercial-ShareAlike 3.0 United States license.

[landrvr1]

I'm sorry, but this is about 10% real concern and 90% fear mongering.

 

'Orphaned Works' is fast becoming an urban myth, and is being pandered about by conspiracy nuts. "The Government and Big Corporations are out to steal my work!" Bollocks.

 

This link can be found in the other links, but thought I'd post it direct. It's excellent:

 

http://maradydd.livejournal.com/374886.html

 

Any kind of Orphaned Works legislation would hurt freelancers, but absolutely DEVASTATE any kind of big art/advertising/graphics/film production house. They would immediately have to fork over untold thousands upon thousands upon thousands of dollars to start a formal process of registering every single sketch, draft, idea, concept, etc etc etc. Anyone who thinks that these folks, who are every bit a part of Corporate America, would stand for that kind of legislation is insane.

 

In fact, many companies have lobbied for quite the opposite: immediate and never-ending copyright and trademark status for everything they and their employees think, dream, and imagine. It's corporate control, but from a completely different angle, lol.

[Sawyer]

Jeff I have read that as well and I am confused because it really seems like what is being proposed (watch all 1h:27 of the subcommittee meeting) is that the copyright law is possibly going to be changed. There is not a bill now but there is a proposal which seems to be much more real than this article assumes. And it seems like at this meeting they are talking about getting out of Berne.

 

What it seems like they are saying is Orphaned works are a big problem lets change copyright law for all created works. It seems nuts but it does seem to be what is on the table.

 

Watch the video I posted. Its long but it has the answers. And maybe I am misunderstanding it.

posting it again

http://judiciary.house.gov/oversight.aspx?ID=427

[ikinman]

This is clearly a contentious issue, and much of what has been said regarding orphan works is overstated, but the concerns are valid. First of all it is doubtful that any new copyright legislation (whether covering orphan works or not) is ever going to go out of its way to help freelancers at the expense of larger corporations and production houses. That’s not how the system works. And the interests of large production houses and freelancers don’t always align. Much of my work is for these larger ad agencies and they are nasty about copyright issues with my studio.

 

One of the main issues is the trampling of illustrators’ copyright by the large photo houses like Corbis, who have been known to troll for ‘orphaned’ images, snap them up and sell them as their own. This has happened with the Freedom Tower renderings that dbox has made – Corbis has been selling them to newspapers and magazines, pocketing the money, and, to add insult to injury, making the publications list Corbis in the credit line.

 

The long post that Jeff just did gives an excellent primer to how to deal with copyright issues. It’s important to bear in mind several of the points.

 

1. If you make the image, you own the copyright without having to do anything, including registering it. And you always own it unless you specifically transfer it. That’s something to remember when your client argues about how they own the copyright because they say after the job is done that you created a ‘work for hire.’ No, you didn’t, unless your contract specifically says that you did. The default is always that you own the work – if they want the copyright, you can sell it to them.

 

2. If you don’t register the copyright, you still have the copyright, but you are limited in terms of any damages that you can get. This is a key point, as you wont be able to recover much financially for copyright violation, which means that lawyers wont touch your case as there isn’t much money involved. This is the problem that dbox had. The solution is to register your copyrights as this allows for you to collect levels of damages that are meaningful. And as is mentioned in the post above, you can register an entire collection of work if you want.

 

3. The copyright office isn’t going to patrol the world looking out for copyright violations for you. Neither is ASAI or NYSR – we don’t have the resources. Musicians have an organization that does just that, ASCAP, which collectively administers the copyrights of musicians and performers, looking out for violations and distributing royalties to its members. Renderers and illustrators do not have a similar organization, until now – this is what ASIP is about, a group of organizations, including ASAI and NYSR (which is in the process of joining), which will collectively administer the copyrights of all of its members, look out for violations, and distribute royalties. As well, it will provide a large organization to fight any copyright legislation that threatens the livelihood of individual illustrators and renderers.

 

4. Despite some overblown comments on the dangers of orphan works legislation, anyone who thinks that any new copyright legislation will not damage the interests of freelancers is a fool. All recent copyright law has been to the benefit of large corporations and image houses. And while it may be doubtful that the US will withdraw from the Berne convention, bear in mind that the US effectively withdrew from the Geneva conventions when it suited the government.

[landrvr1]

Despite 'romantic' visions of the 'good ole' days', copyright and trademark legislation has never really been in favour of the little guy.

 

While I agree with your statement that any new copyright legislation isn't going to benefit the little guy, the large houses certainly aren't going to let anything pass that costs them time and money; which is exactly what most of the 'Orphaned Works' blabber has been going on about. The corporations will want it all: legislation that totally works in their favour, without costing them a dime.

 

When you choose to freelance, you've got to be ready. When Swimming with Sharks.....

[landrvr1]

EDIT: I'd like to add something else....

 

I hate to be put in a position where I'm actually defending the evil multi-national corporations and image/production houses, but it needs to be said.

 

Contrary to popular perception, many of your huge houses and corporations are incredibly paranoid about getting sued, and take significant measures to make certain that they aren't using material illegally. It's done to avoid a PR nightmare, as much as anything else. The notion that these guys are out there constantly ripping off freelancers is....um....wrong.

 

Most corporations don't need to steal from freelancers. They simply engage the artists, then make sure to screw them over with mountains upon mountains of conditions and fine print.

[Sawyer]

1. If you make the image, you own the copyright without having to do anything, including registering it.

 

Ian - This seems to me to be what this whole thing is about. It sure sounds to me like what is being proposed is changing this part of the law so copyright no longer rests with the creator. And each new piece will have to be registered and put online at one of these new yet to be created databases.

[Jeff Mottle]

Yet another email forwarded to me:

 

FROM THE ILLUSTRATORS’ PARTNERSHIP

 

 

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 internetmyth.”

 

 

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...

 

“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 usuallyimpossible 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.

[Jeff Mottle]

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.

 

 

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

[landrvr1]

The plot thickens!!!!!

[Chad Warner]

And here I was, after reading the “Six Misconceptions About Orphan Works” article, thinking that I didn't have anything to worry about. Looks like it's time to worry again!