The evil Orphan Works bill that threatens the copyright of a lot of artists...

[redmeg8]

Hi everyone -

I encourage you to support all American artists by voicing opposition to the Orphan Works Acts that are being fast-tracked through Congress. It’s important that you act now – because Congress (both House and Senate) could be voting on this legislation this month.

Here is a brief summary of the problem.

• The Orphan Works Acts, if enacted would change copyright law in such a way that it would be too costly (time and money) to make a living as a visual artist. There would be less of a need for new art because all one’s existing and new work would be open for others to use for free. Today we call those people- who use art without asking- infringers, those who steal art for their own profit.

• The Orphan Works Acts would affect visual artists who do not make a living from their art (create just for the joy of it). Someone, an infringer, would be able to use your art anywhere they like to make a buck and potentially in ways you would object.

• The Orphan Works Acts would also affect anyone who takes snapshot photos and shares them through email or on the web. Your personal family memories could be used by unscrupulous people or in ways you may object - again just to make a buck. The Orphan Works Acts also opens up privacy issues- by allowing others to distribute and sell pictures of your family members and friends.

The Copyright Act of 1976 was created to allow artists to profit from their work thereby encouraging artists to create- a priceless gift that we presently are able to give to the world.

There may be a desire for libraries, museums, etc to acquire truly orphaned works - those in which the author will never be located. Most visual artists would support this cause for the greater good. But these Orphan Works Acts being pushed through congress are written so broadly, they do not take into account the devastating impact they will have on living and available (who can be located) artists.

Please ask your congressmen to vote in opposition to this act- in both house and senate.

Here’s a link to a web tool that allows you to do so effortlessly: http://capwiz.com/illustratorspartnership/home/

Select the letter that best represents you and edit it as you see fit. Then click to submit – and your letter will be sent immediately electronically to all your congressmen.

Please forward and crosspost widely.

Thank you,
Megan

[Arkansas]

I sent the email. This is seriously messed up. Why would they propose legislation like this? Man, I hope this doesn't pass. My line of work is slim enough as it is without this bull.

[redmeg8]

Tell me about it!

[Marlowe]

eh, i think that this is a bit of a one-sided description.

i'd have to look into this further and think about it more, in order to decide if i'm for or against this, on balance. so i don't necessarily disagree with you. but, this bill is attempting to protect artists from lawsuits when they use old images that don't have any discernible copyright.

if an artist finds an old image or design and makes a good-faith effort to find copyright, then he/she would be protected from lawsuits later. the intent is to encourage the artistic process and incorporation of ideas in creating new works, not to make life harder for artists. moreover, this is being sponsored by pat lehey, a very liberal senator who is well-known for supporting the arts and the creative community. so, it's hard for me to intuit an 'evil' intention here.

you have a reasonable point when you're saying the consequence of such a bill might mean you'll have to take more time and resources to copyright your works. on the other hand, a new market might just emerge to make it easier and cheaper to do it, since more people will be copyrighting things.

again, i don't necessarily disagree with you, but i just think you're leaving out a big part of the story in your description.

[Duemellon]

I too was hesitant to agree to this when I received a call to arms weeks ago because I didn't have the original language of the bill presented to me. I understand there may be a need for interpretation but without the actual language in front of me I'm a bit concerned about having it pre-translated.

I just don't like food regurgitated from someone else's lips.

[Duemellon]

One thing that is lost on a lot of people is the intellectual property rights currently are trampled on horrendously by large corporations. As a rule of thumb & by the nature of the law, Mickey Mouse cartoons & "Happy Birthday" should no longer be protected under intellectual property rights. After X amount of years (I do believe it's 50) those rights are lost. However, these large corporations have asked the government to extend their protection.

It'd be like Beethoven's family claiming we owe them 1¢ every time Fur Elise plays anywhere or we whistle it.

[redmeg8]

again, i don't necessarily disagree with you, but i just think you're leaving out a big part of the story in your description.

Yes, I did. I wanted to post some information and didn't have time to get everything into one post, so, that's why I encouraged everyone to visit the CapWiz site to learn more. I suppose I should have mentioned that specifically.

I will hit the major points in a future post.

[redmeg8]

I'm copying and pasting some bulleted points from one of the letters for the sake of expendiency. I am in no way an expert here... I can forward on any serious questions to someone who is, however.

"The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It is based on the Copyright Office’s study of orphaned work - yet the authors of that study have exceeded their mandate by extrapolating a widespread failure in commercial markets. This is an area which they never studied. If the intent of this bill is to find a way for museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who are hard to find, the authors should not rely on undocumented assertions about markets in which they conducted no studies.

For the record, I am alive, working and managing my copyrights. I can be located. I take steps to make myself accessible. Yet this law dictates that if any user fails to find me, that constitutes a market failure. No, that constitutes a human failure. Clients who work in my markets find me all the time.

This bill would expose countless works like mine to abuse. It would endanger any form of visual art - from professional paintings to family snapshots. It would affect any picture ever put on the internet. Visual art is especially vulnerable because an artist’s work can be published without his signature or credit line, or because credit lines can be removed by others. The widespread orphaning of images will harm not only artists, but all who work in collateral small businesses such as artists representatives, directories and source books, web site designers as well as all those industries which license art and anyone in the image-making public.

In the interest of brevity, I’ll list some basic objections I and other copyright holders have to this bill.

• The bill is written so broadly its use cannot be confined to true orphaned work.

• 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 I would be penalized for not complying with laws which didn’t exist at the time I did the work.

• It would expose my future 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 infringements can occur anytime, anywhere in the world.

• It would force me into court to contest the diligence of an infringer’s search for me, yet it would remove any meaningful remedies for infringement.

• This means I would lose the only means the law gives me to enforce copyright compliance.

• It would force me into court to prove the value of my work, after the work had already been infringed and my exclusive right of copyright was lost;

• Yet it would limit “reasonable compensation” to whatever sum an infringer had established as a market rate for his use of orphaned work.

• 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.

• Yet it would set no limits on the amount an infringer could win from me in a counter suit.

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

• Which would be a gold mine for infringers, who could harvest “orphans,” re-cast them as derivatives, then copyright the derivatives.

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

• This bill would rob me of my exclusive right of copyright, which in the marketplace triples the fee I can get for one-time usage.

• This means my entire inventory of work would be devalued by 2/3 the moment this bill takes effect.

• This bill would prevent me from restricting the use of my art on cheap or distasteful products or on products competitive with my paying clients.

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

• While the bill would not legislate “registries,”it would have the same effect, by exposing to infringement the work of artists who don’t impose registration on themselves.

• This would force me to pay protection money to businessmen to keep something I’ve created myself.

• This would violate existing copyright law, which says “[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

• It would force all visual artists to expose our lives’ work to infringement to subsidize the start-up of commercial registries.

• These registries would rely on image-recognition technology, which is still in its infancy and not reliable.

• Also, no registry will be meaningful until all pictures which anyone wishes to protect have been registered.

• Otherwise, any picture not found in a registry will be considered an orphan by users wishing to document a “reasonably diligent search.”

• This means commercial registries will actually orphan copyright-protected work.

• Which means the bill will have the opposite effect to its stated intent.

To sum up, the Orphan Works Act exceeds its mandate by promising to make orphans of any work whose author any infringer fails to find.

• It fails to properly define the category of orphaned work.
• It sets the infringer’s bar of due diligence so low it guarantees abuse.
• It would force into the courts countless business decisions which should be made in the marketplace.
• It creates problems which do not now exist, but which would require the expansion of the Federal judiciary system to solve."

[C. Doves]

I need to look into this further too. As an artist I am against anything that takes away from myself and other creatives. On the other hand, working in ad-promotions, I couldn't believe the dumb things that Big Corp. America could copyright...especially colors. I shouldn't be able to copyright PMS#123whatthefuk and then sue anyone else who uses it. Or the copyrighting of sentences as slogans that are actually common sayings... I don't know if this bill affects those areas or not....I'm pretty confused about this one, actually.

My sweet lord, I'm confused. Really wanna see you, lord.

[watusi]

My sweet lord, I'm confused. Really wanna see you, lord.

Look forward to a cease and desist letter from the estate of George Harrison.

[frizgolf]

Look forward to a cease and desist letter from the estate of George Harrison.

Careful, the Chiffons may wanna get in on that action after their plagiarism lawsuit for the melody.
You guys have a lawyer on retainer?

[watusi]

Careful, the Chiffons may wanna get in on that action after their plagiarism lawsuit for the melody.
You guys have a lawyer on retainer?

Yes, the law offices of Doo-lang,Doo-lang & Doo-lang.

[frizgolf]

Yes, the law offices of Doo-lang,Doo-lang & Doo-lang.

Post of the day!

[frizgolf]

After reading some of this, it sounds like I need to lock down the ol' Flickr account...

[redmeg8]

This should also add to the discussion and is very informative: http://www.sellyourtvconceptnow.com/orphan/orphan_works_information.mp3

[markalot]

I keep reading Evil Oprah Works Bill.

[the happy prole]

I signed it. I think it's a bad bill.

There is a somewhat legitimate concern here, which is that in this new computer era it is very hard to find the correct owner for a piece of art. If I claim credit for Duemellon's painting and sell it to you, how are you to know I'm lying?

The person at fault is the one who stole the image, but that person is a broke-ass scammer so the one that gets sued is the entity with the deep pockets. That's not right.

This is not the solution, however. All this does is shift the burden of stolen works from the user to the creator/owner NOT the middleman/thief. And the owner/creator should always be top of the totem pole.

What's also funny is that if we were talking about audio works, everyone here would think this bill was the greatest shizz ever. We would hear the usual arguments of how it's good that artists suffer because they are too greedy and how if it's not for commercial use who cares and that the artists should WANT the publicity even if it means their art was altered and they have no means of making money from it. Because the consumers know what's right for the owners.

Meh. The IP laws in this country need updating badly.

[berzerker]

After reading some of this, it sounds like I need to lock down the ol' Flickr account...

If the bill passes, it won't have any effect, probably.

[frizgolf]

If the bill passes, it won't have any effect, probably.

Yeah, I guess as long as the pic is found through Flickr, I have nothing to worry about.

[berzerker]

Yeah, I guess as long as the pic is found through Flickr, I have nothing to worry about.

No, I mean - Flickr's copyright protection will most likely be rendered null and void...

[the happy prole]

Flickr doesn't grant you any copyright protection. You get that the moment you create the work. You don't need to formally register it, and this bill doesn't change that. At least not technically. If I take something from your Flickr account technically you can sue me and win. Under either the old law or the new one. There's no way I can claim due diligence if I didn't even bother to ask anyone where it came from. Technically. The reality is rather different.

The thing is, artists are sort of already screwed under the present laws. You take a photo, and it's a good one. You post it on the boards and I copy it and post it on another board where someone else copies it, etc. Eventually it's on hundreds of boards.

Sure, you can sue me if I use that work... but first you have to prove it's yours. And how are you going to do that? How would the trier of fact know that you really took that photo aren't just someone looking to cash in?

If I'm a large corporation using your picture in a campaign, I can easily tie you up with so many legal fees trying to prove that picture is yours that you are screwed anyway. And it would still be worth it to because my pockets are so much deeper than yours. It's a drop in the bucket vs a multi-million dollar ad campaign.

So marlowe is right, in a sense. This law mostly effects small time people who really don't have the resources to track down the originator of a piece of art. Consider what could have happened on this board. Someone posts a photo and I am looking for an album cover for my band. I go "Hey, that's a nice photo. Can I use it?" The person says "Yeah, just give me $25." "Cool." Now it turns out that person was a total imposter. Now I get slapped with a huge lawsuit for infringing copyrights.

The legal liability I incur as the potential unknowing purchaser of a fraudulent work is way too high for my budget. I might love what redmeg8 and duemellon claim is their work, but since I don't know for sure they aren't liars, I can't take the chance. And that costs them a commission.

By lowering my risk as a purchaser, a law like this could make it easier for small, independent artists to engage in business with the small, independent purchasers who probably make up a good percentage of their income. At the expense of allowing other small-time assholes to more easily rip them off. Is it a net plus or minus for the artist? I'm not really sure.

I believe that this law is poorly written. The standards are too vague, and vague legal standards always favor the deep pockets, so it's not protecting rights, it's just protecting the rich.

There has to be a better way. I really think it's time to have an national registry of works. Go back to the "first to register model." The problem with that model in the past has been that the time and expense is too great. And while the copyright office is dorking around with your application, some smart corporate guy with a good attorney who knows how to grease the skids can beat you to registration even if it wasn't their idea.

But if it costs 50 cents to register a work and it can be done very simply online in about 10 minutes, there's no reason the creator can't go ahead and register their work before anyone else gets to it. It could potentially yield much greater protection for small artists rather than less.

[Duemellon]

I might love what redmeg8 and duemellon claim is their work, but since I don't know for sure they aren't liars, I can't take the chance.How dare you! I've never been so insulted in my life! How slanderous! You'll hear from my lawyer, LDog, from the firm of BSug & RVa!

[redmeg8]

But if it costs 50 cents to register a work and it can be done very simply online in about 10 minutes, there's no reason the creator can't go ahead and register their work before anyone else gets to it. It could potentially yield much greater protection for small artists rather than less. Unless one has a lot of back work that would need paying for. I know a photographer with over a million photos.... you see where I'm going with this. I can think of many illustrators I know who could potentially be put out of business if they had to pay (even 50 cents) for all of the work they've done in order to protect it.

I have no trouble offering discounts to small businesses and non-profits, students, etc. who contact me to re-use a piece or commission something from me. The point being, they CONTACT me.

The bill is horribly written and, unfortunately, there are folks already lining shit up to begin creating clearinghouses of work that are "orphans". The domain names are already registered.

This sucks.