The 2008 Orphan Works Act: This is very,very,very B-A-D legislation!!
First - and I apologize for the length - but I’m going to post the full article (with the author’s permission) by Mark Simon, from last month’s Animation World Magazine.
This legislation would devastate artists of all stripes, and potentially cause havoc for every business with a logo, corporate identity, personal photo, sketch, song, painting, sculpture…and every body who has ever posted any image or written word online - ever. It would potentially legalize fraud on a massive scale never before seen.
Here you go - it’s long, and there are additional links at the bottom - including to the pdf versions of both the house and senate bills - but it’s vitally important to everyone -so please read it and notify your congress people NOT to pass this!
Mind Your Business: You Will Lose All The Rights to Your Own Art
Mark Simon is mad as hell and, in this month’s “Mind Your Business,” he tells you why you should be too.
April 10, 2008
By Mark Simon
Printable Version
Mark Simon.
As you know, I usually handle the subjects in my articles with a sense of humor. That is not the case this month. I find nothing funny about the new Orphan Works legislation that is before Congress.
In fact, it PISSES ME OFF!
As an artist, you have to read this article or you could lose everything you’ve ever created!
An Orphaned Work is any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time, or by lack of proper registration. In the same way that an orphaned child loses the protection of his or her parents, your creative work can become an orphan for others to use without your permission.
If you don’t like to read long articles, you will miss incredibly important information that will affect the rest of your career as an artist. You should at least skip to the end to find the link for a fantastic interview with the Illustrators’ Partnership about how you are about to lose ownership of your own artwork.
Currently, you don’t have to register your artwork to own the copyright. You own a copyright as soon as you create something. International law also supports this. Right now, registration allows you to sue for damages, in addition to fair value.
What makes me so MAD about this new legislation is that it legalizes THEFT! The only people who benefit from this are those who want to make use of our creative works without paying for them and large companies who will run the new private copyright registries.
These registries are companies that you would be forced to pay in order to register every single image, photo, sketch or creative work. It is currently against international law to coerce people to register their work for copyright because there are so many inherent problems with it. But because big business can push through laws in the United States, our country is about to break with the rest of the world, again, and take your rights away.With the tens of millions of photos and pieces of artwork created each year, the bounty for forcing everyone to pay a registration fee would be enormous. We lose our rights and our creations, and someone else makes money at our expense.This includes every sketch, painting, photo, sculpture, drawing, video, song and every other type of creative endeavor. All of it is at risk!
If the Orphan Works legislation passes, you and I and all creatives will lose virtually all the rights to not only our future work but to everything we’ve created over the past 34 years, unless we register it with the new, untested and privately run (by the friends and cronies of the U.S. government) registries. Even then, there is no guarantee that someone wishing to steal your personal creations won’t successfully call your work an orphan work, and then legally use it for free.
In short, if Congress passes this law, YOU WILL LOSE THE RIGHT TO MAKE MONEY FROM YOUR OWN CREATIONS!
Why is this allowed to happen? APATHY and MONEY.
Artists have apathy and corporations have money.
We need to be heard in order to protect our incomes, our creations and our careers. GET OFF YOUR ASS!
That means writing letters to our congressmen and representatives. That means voicing your opinion about how we need copyright protection, as we’ve had since 1976, that protects everything we create from the moment we create it. This is the case around the world.
However, an Orphan Works bill is also in the works in Europe. I was speaking recently with Roger Dean, the famed artist of the Yes album covers, and he is greatly concerned with what will happen if Orphan Works bills become law.
“This will devastate the livelihood of artists, photographers and designers in a number of ways,” Dean says. “That at the behest of a few hugely rich corporations who got rich by selling art that they played no part in the making of, the U.S. and U.K. governments are changing the copyright laws to protect the infringer instead of the creator. This is unjust, culturally destructive and commercial lunacy. This will not just hurt millions of artists around the world.
“On the other side of the coin, what argument will a U.S. court have with a Chinese company that insists it did its research in China and found nothing? If the cost of this is onerous for a U.S.-based artist, what will it be like for artists and small businesses in emergent economies?”
If an artist whose work is as famous as Roger Dean’s is concerned with this legislation, it should be of great concern for all of us.
The people, associations and companies behind the Orphan Works bill state that orphaned works have no value. If that were true, no one would want them. However, these same companies DO WANT your work, they just don’t want to pay for it. If someone wants something, IT HAS VALUE. It’s pretty simple. Some major art and photography associations, or I should say, the managers of the associations, support this bill. The reason they support it is that they will operate some of the registries and stand to make a lot of money. Some have already been given millions of dollars by the Library of Congress. Follow the money and you will see why some groups support this bill of legalized theft of everything you have ever created.1 2 3 
(I re-set these to opn in a new page, so this entry could be a little shorter - but PLEASE! Read the whole thing!)Here’s more info:
Orphan Works
Or, How You May Lose All the Rights to Every Piece of Art You Have Ever Created!
The Shawn Bently Orphan Works Act has been released to Congress. Below you will find more information, articles and interviews so you know what is going on and what you can do about it.
Audio Interview About Orphan Works Act
On April 5th, 2008, I interviewed Brad Holland of the Illustrator’s Partnership about the Orphan Works bill and how it affects every artist and photographer in the world.
YOU NEED TO LISTEN TO THIS because you are about to lose your copyright protection. Every one of you needs to stand up and be heard in order to protect what we have all created.
Please forward this information to every creative person and group you know. I give permission for this audio file to be copied and transferred and replayed so that everyone may learn about what is going on.
CLICK HERE to DOWNLOAD the MP3 of this interview. E-mail it to others or put it on your iPod.
IT’S HERE!
The 2008 Orphan Works Act has been released to Congress
Click HERE to download the Senate version of the bill,
S 2913 The Shawn Bentley Orphan Works Act of 2008
Click HERE to download the House version of the bill.
The_Orphan_Works_Act_of_2008.pdf
Orphan Update E-mail Lists
Brad Holland
Illustrator’s Partnership
www.IllustratorsPartnership.org
ipa@twcny.rr.com to get on the Orphan Works e-mail list
IPA Orphan Works Resource page for more info:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Govt. Contacts
Contact your Senators, Representatives, Governors and State Legislators:
http://www.usa.gov/Contact/Elected.shtml
Sample Letter You Can Send
CLICK HERE to download a template (MS Word document) you can customize and fax, mail or e-mail (fax is best) to your Senator, Representative, Governor and State legislator.
Do NOT threaten or curse in any response you send to legislators or supporters of the bill. That will only hurt the cause! Once the bill is back on the floor, we will post information here on when it will be the best time to write letters.
How This Affects Other Artists
Interview with Alex Saviuk, famed Spider-Man comic artist about the Orphan Works bill.
CLICK HERE to download and listen to Alex’s interview.
On May 1, 2008, I posted a new article about the specifics of the Orphan Works Act of 2008.
I give permission for this article to be copied, sent and re-printed. Please help us spread the word.
Don’t Lose The Rights to Your Artistic Creations
Mark Simon
Artist Advocate
Press Release.
Others have said it couldn’t happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. THEY WERE WRONG!
If you don’t register every photo and work of art in government certified private databases, you are about to give the legal right for anyone to infringe on your copyright.
“The Orphan Works Act of 2008”, (H.R. 5889) and the “Shawn Bentley Orphan Works Act of 2008” (S.2913), were released to the House of Representatives and the Senate recently. While at first glance the law seems to be a ‘last resort’ for a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.
An “orphan”, as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but the copyright holder can’t be found. Actually, this bill makes it easy for searchers to pretend it’s hard not to find copyright holders!
REGISTRIES WILL REMOVE YOUR COPYRIGHT PROTECTION!
We cannot just sit back and let this Orphan Works bill pass! As it is written, if it passes we would have to register all of our creative works in all the upcoming private sector registries (those certified by the Copyright office) or risk orphaning all of our work. This means all past, current and future work could be legally used without your permission.
The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new softwares to match an image to be searched with the images that are registered and if found will supply the searcher with the artist’s name and contact information.
Having online registries to search for copyright owners is great. Using these registries as a basis for legally orphaning a work is TERRIBLE.
What makes me think the registries will be used to orphan works of art? Three reasons.
One. Page 2 of the Senate Orphan Bill states “sources of copyright ownership information reasonably available to users, including private databases.”
Two. The effective date of this Bill will take effect either (a )on the date at least two private registries are available online or (b) by January 1, 2011, whichever is first. They are tying the bill to when these registries are available online.
Three. People who want to use your work for free now only have to perform a search for you using these registries, which will be ineffective at best, to qualify your work of art as orphaned, giving them FREE use of your art or photo. The private registries will likely be easy and quick, just not very complete.
All someone has to do is search a couple of these registries and if your work doesn’t show as a match (and remember these software aren’t perfect, so you may have registered your work and still not have it show up in the results) it may be considered orphaned and they can use it for free.
REGISTRY ENTRIES WILL BE LIMITED AT BEST
The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every work of art, sketch and photo they have ever produced and register them with every upcoming electronic database. Add to that any studio/artist expenses involved, assistants and assumed registration fees, and it’s even less likely much work will make its way into the registries.
EVEN FAMOUS ARTWORK CAN BE STOLEN!
Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.
Religious painter Gary Lessord created a painting in 1979 called “The Crucifixion”. According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his “Passion of the Christ”.
[Figure 02, The Crucifixion by Gary Lessord. Copyright 1979. All Rights Reserved.]
Lessord’s painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book “The Many Faces of Christ”, featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and being the ONLY work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.
Under the current copyright laws, if found guilty Gibson and his production company are liable for the infringement.
If the new Orphan Bill passes, all they would have had to do is search two of the registries and if the image doesn’t show up, consider it an orphan and use the work. It won’t matter how popular the piece is if Lessord doesn’t register it in the same digital databases used in their search.
The new Orphan Works Act will orphan even internationally known works of art such as Lessord’s.
Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. Current copyright law has allowed him to sue and successfully collect large damages from the infringing companies.
“This has GOT TO STOP,” says McCandlish. “It will only get worse—much worse if the Orphan Works legislation passes.”
[Figure 03, Tomcats by Mark McCandlish. Copyright 1991. All Rights Reserved.]
THERE WILL BE NO PENALTY FOR STEALING!
In the new legislation, McCandlish would not have the same ability to sue for statutory damages. The new law will “limit remedies”, thereby removing the expensive penalty for stealing your work. Sure, you will still be able to sue, but you will be limited to the amount. This only empowers those who want to steal our creative works!
This means the most an infringer would have to pay IS WHAT THE INFRINGER FEELS HE SHOULD HAVE PAID IN THE FIRST PLACE! You, the artist, will no longer be entitled to any monetary recovery from the infringement damage, costs or attorney fees, which would often be more than what they could collect. Any betting man wanting to use your art would take these odds and steal your work.
If you don’t think this applies to you, think again. Have you ever taken a photo that is on the internet? Maybe you have photos on a photo sharing service like Flickr, Shutterfly or Snapfish.
Just imagine one of your photos was used by someone else on their site. That happens all the time, but if there is no commercial benefit to them, it’s no big deal. Right? Wrong!
If a designer finds your photo on someone else’s site (making it harder to find you, the true owner) and you haven’t registered it in the online databases, an unsuccessful search on a certified registry will orphan your photo, allowing its use without your permission. You could end up seeing your photo in a national ad campaign, possibly for a product you don’t want to be associated with.
THEY CAN CHANGE YOUR WORK AND COPYRIGHT IT FOR THEMSELVES!
The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to your work and copyright it under their own name!
Do you want to see what lewd things people can do to your work LEGALLY? You would have no recourse but to watch your creations be altered, sold and potentially ruin the reputation of your work.
Proponents of this Bill say they are protecting the rights of the people to make use of existing creative works if they can’t find the owner. WHAT RIGHTS? Just because you can’t find me, doesn’t give you the right to use my work!
If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner? Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don’t include that information in the first place.
Sure, we can also put digital watermarks on scanned images, but not every piece of art or photograph is only in digital form. Plus, there is an easy work-around to remove digital watermarks as well. (If you don’t know it, I’M not going to tell you!)
You must make yourself heard NOW. This bill must not be allowed to pass!
Any single clause or amendment to a bill can cause an otherwise well-intended law to become devastating to a segment or segments of the population. According to Dan Nichols, who has worked on a number of political campaigns, it can take an average of 7 bills to reverse the total impact of a single bill one it is passed. This means 7 times the effort and money to reverse a bad law - even though it is recognized as a bad law - because there will be many different groups wanting to hold on to the parts of the law that benefit them. It is nearly impossible to completely reverse the effects of a law once it passes. This should make apathy the enemy of anyone who has something to lose by any aspect of a pending bill.
DON’T BE BULLIED INTO GOING ALONG WITH A BAD LAW!
CONTACT YOUR LEGISLATOR:
Go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone number, address, e-mail of every U.S. Senator, U.S. Representative, Governor and State Legislator. Please be polite. Threats only work against us artists. We need to make a professional impression to be taken seriously.
Make yourself be heard. Protect your creations. Every voice counts and so does your right to control your own creations. YOU NEED TO WRITE LETTERS NOW!
We only have a few days to make ourselves heard, as the Senate and House will only allow a short time for comments. Call them, send e-mails and fax letters.
If you don’t prove you care about your work, the Congressmen and Senators who WORK FOR US won’t care either. Show them you care!
For additional info - please go here.
