Thursday, May 16, 2013

Letter to Congressional Creative Rights Congress

May 14, 2013

Representative Judy Chu
Representative Howard Coble
Co-Chairs, Congressional Creative Rights Caucus
Committee on the Judiciary
Subcomittee on Courts, Intellectual Property and the Internet 

Dear Representatives Chu and Coble,

Thank you for your leadership in founding the Congressional Creative Rights Caucus earlier this year.  We applaud your insights into the need for such an important group of Members during this critical time for America's creative community.

We understand that this week Chairman Goodlatte has scheduled a hearing before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet entitled “A Case Study for Consensus Building: The Copyright Principles Project.”

Although we are not aware of any visual artists being included in the “Copyright Principles Project,” we applaud the Committee’s inquiry into – and the Creative Caucus’s interest in – the effects of the Internet on copyright; and we would like to take this occasion to introduce you to our organization and to state our interest in this issue.

The American Society of Illustrators Partnership (ASIP) is a grassroots coalition of twelve visual artists organizations, founded and funded entirely by working artists. ASIP was founded in 2007, as an initiative of the Illustrators’ Partnership of America (IPA), although many of our member organizations have distinguished histories dating back more than 50 years.

Together we make up a broad spectrum of creative artists, ranging from the nation's editorial cartoonists to medical illustrators, architectural and science illustrators, aviation artists, magazine, book and advertising illustrators. Combined, we create much of the visual material in American contemporary culture.

Our 14-person board includes a Pulitzer Prize winner, a muralist for the Smithsonian's Air and Space Museum and two members of the Illustrators Hall of Fame; as well as artists who have received the top awards for achievement in their respective fields. We are fortunate to count the Honorable Bruce A. Lehman, former Assistant Secretary of Commerce and Commissioner of the U.S. Patent and Trademark Office among our closest advisors.

We, and most of the thousands of artists we represent, are freelance creators or small business owners and all of us make our livings licensing the copyrighted work we create.

We therefore have a compelling interest in the continued effectiveness of copyright law in the field of visual art. We believe we have unique insights and unparalleled experience in how art is created, licensed and managed by the people who actually create it, as well as what it is like to live and work under the U.S. Copyright Act and related international treaties.

Support from the U.S. Small Business Administration
In 2006 and 2008 our twelve organizations formed the nucleus of an even broader informal coalition of 84 organizations, representing artists, photographers, writers, songwriters, independent music labels and other small business owners in the multibillion-dollar craft, greeting card and licensing industries.

At the invitation of the Office of Advocacy of the U.S. Small Business Administration, we came together on August 8, 2008 for a copyright roundtable hosted by the U.S. Small Business Administration. The SBA roundtable addressed the issue of “orphan works.”  The lively session was videotaped and is available online at http://vimeo.com/channels/artistsrights

ASIP’s Copyright Office Filings
In addition, the panelists who attended the Small Business Administration roundtable – and scores of those and who could not attend – submitted papers to the SBA addressing the subject.  We have collected and organized those papers.  On February 3, 2013, the Illustrators’ Partnership submitted them to the Copyright Office as an appendix to our submission to its Notice of Inquiry regarding potential orphan works legislation (Notice of Inquiry, Copyright Office, Library of Congress Orphan Works and Mass Digitization (77 FR 64555)). IPA’s comments were endorsed in a separate paper by the full ASIP board: http://www.copyright.gov/orphan/comments/noi_10222012/American-Society-Illustrators-Partnership-ASIP.pdf

The appendix of SBA roundtable material is now online at the Copyright Office website, and we welcome this opportunity to call your attention to it. To the best of our knowledge, it remains the only effort so far by any agency of the U.S. government to ascertain how creators as small business owners are already adapting to the changes in the new digital environment.

Although our February 14, 2013 initial comments, as well as our March 6, 2013 Reply Comments, both address the specific subject of “orphan works,” we chose to place those comments in the larger context of copyright “reform.” As such, we think these comments are a useful contribution to this important debate for Members of the Creative Rights Caucus to consider and discuss in the coming months.  


Endorsement of the Illustrators’ Partnership by the National Writers Union
In addition to the endorsement of the member organizations of ASIP, we are fortunate to have the support of a wide variety of other creators.  For example, our Copyright Office filings were endorsed and commended to the attention of Congress by the National Writers Union, which stated in the NWU’s own comments to the Copyright Office:

“In particular, the NWU endorses and commends to the attention of the Copyright Office and Congress the objections to “orphan works” legislation raised by Mr. Bruce A. Lehman; [and] the extensive submissions of the Illustrators Partnership of America.”


We respectfully submit that the Creative Rights Caucus may wish to review our Copyright Office filings and the Small Business Administration roundtable materials in order to get a richer view of the thoughts of independent visual artists/small business owners regarding copyright reform in general and orphan works issues in particular.  

We invite the Caucus to call upon us if we can expand on our comments or be of any assistance as this critical process moves forward.

Respectfully,

Brad Holland
Co-chair of the American Society of Illustrators Partnership
Representative of the Illustrators’ Partnership of America

Cynthia Turner
Co-chair of the American Society of Illustrators Partnership
Representative of the Illustrators’ Partnership of America

And on behalf of the Board of Directors, American Society of Illustrators Partnership

Frank Costantino, ASAI, FSAI, JARA                          
1st Vice-President                       
Representative for American Society of Architectural Illustrators (ASAI)     

Michel Bohbot
Treasurer
Representative for San Francisco Society of Illustrators (SFSI)

Dolores R. Santoliquido
Secretary
Representative for Guild of Natural Science Illustrators (GNSI)

Joe Azar, Esq.
Director
Representative for Illustrators Club of Washington DC, MD, VA (IC)

Dena Matthews
Director
Representative for Association of Medical Illustrators (AMI)

Ilene Winn-Lederer
Director
Representative for Pittsburgh Society of Illustrators (PSI)

Ken Joudrey
Director
Representative for Society of Illustrators San Diego (SISD)

C.F. Payne
Director
Representative for the National Cartoonists Society (NCS)

Nick Anderson
Director
Representative for the Association of American Editorial Cartoonists (AAEC)

Keith Ferris
Director
Representative for the American Society of Aviation Artists (ASAA)

Joe Cepeda
Director
Society of Illlustrators Los Angles (SILA)

Don Kilpatrick
Director
Unaffiliated Illustrators at Large

Monday, November 28, 2011

ONE SMALL STEP FOR ARTISTS

At last it may be possible for some illustrators to start receiving reprographic royalties. The Illustrators Partnership has been pressing this issue for  several years.

Last April we announced that the New York State Supreme Court, New York County, had dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators Partnership and five named individuals. 

Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote:
"The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists."
Therefore we were pleased to learn last week that a list of illustrators, designers and photographers has been made public who may now claim their reprographic fees.

The names on the list range from some of the best known artists in our field to many whose identity we can't be sure of. We've already contacted our own members to alert them. Now we urge any artist who has ever done published work to follow the instructions below to see if your name is on the list and if so, to learn what you'll have to do to claim your royalties.

The royalties involved are title-specific fees. That means it's money derived from the foreign licensing of books or other publications where a single author can be identified by the foreign collecting societies that monitor usage and collect usage fees. The sums owed to any individual may not be large. Still, we believe that paying artists what they're due constitutes both an important principle and establishes a precedent for retaining our rights in the digital era.

Returning these title-specific royalties to artists is a start. Yet it still leaves open the far larger question of non-title specific royalties. These are collective fees derived from work that appears in magazines, newspapers, annual reports and other collective works.

Collective fees can be returned to artists only by a collecting society properly chartered to receive funds and make equitable distributions to rightsholders. In the US, 12 illustrators organizations have come together for this purpose. We'll have more to say about that shortly.

In the meantime, here's how you can see if you have money currently waiting for you and what you'll need to do to receive it:
Your name may be posted here:
http://www.authorscoalition.org/individual_author_distributions/index.html
(Click on the box labeled LIST OF AUTHORS.)

1) Download and fill out the ACA Collection and Claim Form PDF here:
http://www.authorscoalition.org/individual_author_distributions/ACA_Collection_Claim_Form.pdf

2) Download and fill out the W-9 Form PDF here:
http://www.irs.gov/pub/irs-pdf/fw9.pdf

3) Fax them to Authors Coalition at 313-882-3047, or mail to:
Authors Coalition of America
IAD
280 Moross Road
Grosse Pointe Farms, MI 48236
For the record, the Illustrators' Partnership is not associated with the Authors Coalition of America.

- Brad Holland and Cynthia Turner
on behalf of the Board of the Illustrators' Partnership

Wednesday, April 27, 2011

Graphic Artists Guild Lawsuit Dismissed

Last week the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators' Partnership of America (IPA) and five named individuals.

In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a "business relationship" GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators' work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists "interfered" with GAG's "business" of appropriating these orphaned fees.

In her decision, Judge Debra James ruled that statements made by the Illustrators' Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a "common interest" in orphaned income; and that a "common-interest privilege" may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty. 

Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote:

"Inasmuch as the statement [by IPA] was true, [GAG]'s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns."  (Emphasis added.)

And she noted:

"The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists."

Labor Department filings provided as evidence to the court document that between 2000 and 2007, GAG collected at least $1,581,667 in illustrators' reprographic royalties. GAG admitted to having collected similar royalties since 1996. GAG's officers have repeatedly refused to disclose how much money their organization has received to date or how the money has been spent.

DUTY AND COMMON INTEREST 
The judge concluded that this situation justified an assertion of common interest by IPA. This means that "the party communicating [relevant information] has an interest or has a duty" to convey that information truthfully to others "having a corresponding interest or duty":

"The duty need not be a legal one, but only a moral or social duty. The parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information. Here the plaintiff Guild's factual allegations demonstrate that the defendants' statements were both true, and fall within the parameters of the common-interest privilege." (Emphasis added.)

We hope this decision will end the two and a half years of litigation during which GAG pursued its claims against IPA and artists Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators.  

All defendants were participants in a public presentation sponsored February 21, 2008 by 12 illustrators organizations. The presentation was disrupted by GAG's officers and their attorney. A videotape of the event proves that statements which GAG alleged to be defamatory were made only in response to GAG's intervention, and that until that time, no speakers had mentioned GAG or GAG's longstanding appropriation of illustrators' royalties. 

Last year, on January 12, 2010, Judge James issued a prior ruling dismissing nearly all of GAG's causes of action. This left only a claim asserted by GAG against Brad Holland. But in a response filed with the court February 4, 2010, attorney Jason Casero, serving as counsel for IPA, pointed out that GAG's remaining claim rested on an allegedly defamatory statement that Holland never made. When confronted with evidence, GAG was forced to admit it had "inadvertently attributed" the statement to Holland.

GAG subsequently filed new motions in an effort to revive its claims against IPA and the other defendants. Last summer the judge consolidated GAG's multiple motions and on April 18, 2011, she dismissed all ten causes of action against IPA and all the defendants.  

REPROGRAPHIC RIGHTS AND ORPHAN WORKS
GAG served the lawsuit on IPA October 10, 2008, seven days after Congress failed to pass the Orphan Works Act of 2008. The Illustrators' Partnership and 84 other creators' organizations opposed that legislation. GAG had lobbied for passage of the House version of the Orphan Works bill. Mandatory lobbying disclosures document that GAG spent nearly $200,000 in Orphan Works lobbying fees.

In our opinion, the issues behind the lawsuit are greater than whether an organization should be allowed to benefit from the millions of dollars that, collectively, illustrators are losing. We believe the reprographic rights issue is linked to both orphan works legislation and the Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011.

Each of these developments involves an effort by third parties to define artists' work and/or royalties as orphaned property, and to assert the right, in the name of the public interest or class representation, to exploit that work commercially or to appropriate the royalties for use at their sole discretion. So far, judges have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. Now the challenge for artists will be to see that Congress does not pass legislation to permit what the courts have so far denied.

We'll have more to say about this issue in the future. For now we'd like to conclude by thanking our attorney Jason Casero, who provided us with a strong, incisive and heartfelt defense; his law firm, McDermott Will & Emery, which provided us with his services; the Volunteer Lawyers for the Arts of New York and its Director Elena Paul. We'd also like to thank Dan Vasconcellos, Richard Goldberg, and the over 700 artists and illustrators who in 2008 signed a petition asking GAG (unsuccessfully as it turned out) to drop the lawsuit; the support of so many colleagues was a great tonic at a low time. Finally we'd like to thank the representatives of the 12 organizations that comprise the American Society of Illustrators' Partnership (ASIP). ASIP is the coalition organization IPA incorporated in 2007 to act as a collecting society to return royalties to artists.  

- Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership 

This message may be reposted or emailed in its entirety to any interested party.
   

Wednesday, March 23, 2011

Court Rejects Google Book Settlement

Yesterday, U.S. Circuit Judge Denny Chin rejected the Book Rights Registry settlement between Google and the US Authors Guild. The $125 million commercial agreement would have rewarded both parties for the largest mass infringement of authors' copyrights in history. Instead, the judge ruled it a business deal "too far."

"A Reversal of Copyright Law" is what we called this agreement in our warning to illustrators September 29, 2009. Like the visual arts "databases" we opposed during the Orphan Works fight, we wrote:

"this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author.

"Both schemes would force authors to opt out of commercial operations that infringe their work or to 'protect' their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law."

Judge Chin held this to be the case. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled. "[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."

The judge also noted objections to the "Adequacy of Class Representation."  In short, this holds that neither Google, nor any organizations claiming to represent authors, nor the university libraries that gave Google "permission" to digitize their holdings, own the copyrights to the works this agreement would have allowed them to exploit. 

Therefore, they have no standing to broker deals based on claims that they represent the "class" of authors. 

The judge held this to be the case even where organizations asserted the right to "expropriate" "orphaned" royalties belonging to rightsholders.  Noting that "After ten years, unclaimed funds may be distributed to literary-based charities," the judge concluded:

"[A]t a minimum a fair question exists as to whether this Court or the Registry or the Fiduciary would be expropriating copyright interests belonging to authors who have not voluntarily transferred them. As Professor Nimmer has written: 'By its terms Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts of seizure, etc., by any 'organization' as well.' 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §10.04 (Rev. Ed. 2010) (footnote omitted)." [Page 31 of the judge's ruling, emphasis added.]

In rejecting the settlement, Judge Chin also echoed the US Justice Department's antitrust objections: The deal, he wrote, "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission..." He suggested the settlement might win approval if it were revised to cover only those who opt into the agreement.

Saturday, April 10, 2010

Individual Rights Versus the Collective

For the last several days, we've been responding to queries about the announced "class-action" lawsuit by "visual arts" organizations against Google in the matter of the Google Book Search project. Some perspective:

The organizations suing Google are the same visual arts groups that lobbied for passage of the House version of the Orphan Works bill. That bill would have created commercial registries that artists would have to patronize to protect their work from potential orphan status. It would also have created a Dark Archive where infringers could register their right to infringe work.

The Google Book Search settlement involves an agreement in which two US organizations would consent to Google's mass infringement of books by the world's authors in return for multimillion dollar cash settlements for their organizations and payouts of $5 to $60 to the infringed authors. In return Google would continue scanning, create yet additional commercial products without the prior consent of rightsholders, control future markets and create a Book Rights Registry of "orphaned" books. The settlement has been condemned by the US Justice Department, the US Copyright Office, several countries and by authors and publishers around the world.

One of the chief objections to the settlement is that the plaintiffs do not have standing to trade away the rights of the world's authors as a class action. The US Government has filed two formal statements against the agreement, noting that procedural rules cannot be used to modify rights: 


"[T]he amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation". (Emphasis added)

We commented on this case last fall. It’s currently under review by the United States District Court for the Southern District of New York.

Copyright is an Individual Right 

Let's reassert the basic principles we've held to since we started the Illustrators' Partnership:

·  We believe that copyright should be maintained as an individual, not a collective right.
·  As such, we will not make claims to represent the copyrights of others without their consent; and
·  We don't recognize the right of any organization to represent our copyrights without our consent.   
 
To be specific: We do not recognize the right of any organization to negotiate with, trade away or permit infringement of our copyrights for any purpose without our consent, either to enter into agreements with third parties, or to be named as an Orphan Works registry, or for purposes of collecting our reprographic and digital royalties, or for condoning the mass infringement of our works for a “cut of the action.”

The Google Book Rights Settlement and the Orphan Works Act have highlighted the age-old problem of separating individual rights from the collective. The ability of large internet interests to build empires by aggregating the work of individuals and licensing that work as a "service" to the public has created a tempting business model for opportunists eager to cash in and clothe their self-interest in the language of altruism. The land rush for creators rights as a collective right is on.
 

Copyright is a property right and is the exclusive right of the author. 

We'll have more to say about this in the future.

Thursday, March 18, 2010

White House Seeks Artists' Comments to Improve Copyright Protection

New Copyright Czar begins Joint Strategic Plan to Protect Intellectual Property
Victoria Espinel is the first U.S. Intellectual Property Enforcement Coordinator (IPEC), also known as the Copyright Czar. Congress created IPEC by an Act of Congress. Ms. Espinel serves within the Executive Office of the President to coordinate with all the federal agencies that fight the infringement of intellectual property.

Ms. Espinel and her team are specifically tasked with formulating and implementing a Joint Strategic Plan to help protect the ingenuity and creativity of Americans by improving the U.S. Government's protection of the rights of intellectual property owners.

Your input is requested.
The White House is inviting your public input and participation to shape an effective intellectual property enforcement strategy. Please respond with your written submissions regarding the costs to you, your business and the U.S. economy resulting from infringement of your intellectual property rights, both direct and indirect.

This will be a 2-part process.
The first is to gather public recommendations by March 24. IPEC will then gather your input on the formulated plan.

Please be precise.
Include your name, city, state, and what type of artist you are. Explain why copyright is critical to you as a commercial artist, how infringement affects you, and what the U.S. government can do to better protect the rights of American artists. If your submission is about your economic loss due to infringement of your copyrights you must clearly identify the methodology used to calculate your losses or otherwise validate your infringement and enforcement costs.

Your submission will be publicly posted.
For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information.

Confidential disclosures.
If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let them know by contacting:  

Thomas L. Stoll
Office of the Intellectual Property Enforcement Coordinator
(202) 395-1808

Deadline: Submissions must be received by Wednesday, March 24, 2010, at 5 p.m. EST.
Address: All submissions should be sent electronically via intellectualproperty@omb.eop.gov

Additional Background Reading:
White House Blog
Federal Register Notice Request

Thursday, October 22, 2009

Authors Groups Meet in Oslo

OSLO NORWAY Over 60 authors organizations met here this week to discuss strategies for defending authors' rights in the digitized world. Their call to action is reminiscent of the grassroots coalition that came together in the US last year to oppose the Orphan Works bill. In addition to concerns over anti-copyright legislation, authors around the world, including visual artists, face threats from piracy, unauthorized usage, all-rights contracts and, in the US, the loss and/or dissipation of their reprographic royalties.

The Oslo meeting was held concurrent with the anniversary of the founding of the International Federation of Reproduction Rights Organizations (IFRRO). IFRRO was born in Oslo 25 years ago. In the last quarter century, it has grown to 190 members and associate members, of which the Illustrators' Partnership is one.

IFRRO was founded by a small group of visionaries who believed that there was a need for an international organization of Reprographic Rights Organizations (RROs). RROs are collecting societies that monitor and clear rights to authors' creations in collective works such as books, magazines, etc. They grant rights, as mandated by authors, collect fees and return royalties to illustrators, artists, writers and others.

Collecting societies are a new concept to most American illustrators. They exist in countries around the world, but currently, there are none for illustrators in the US. Two years ago, the Illustrators' Partnership brought together 12 prominent visual arts organizations. These groups have incorporated as the American Society of Illustrators Partnership (ASIP).

ASIP, which has been chartered as a collecting society, hopes to begin the long-overdue process of bringing accountability to illustrators' reprographic rights. The 12 founding groups of ASIP also formed the nucleus of the 85 organizations that opposed the Orphan Works bill. In future reports, we'll tell you more about what illustrators can do individually to help us build this formal coalition into a functioning society.

Another Anniversary: The 1999 Santa Fe Conference

The meeting of authors this week in Oslo recalls another anniversary closer to home: the first Illustrators Conference, which opened 10 years ago this week in Santa Fe.

The Santa Fe Conference was a grassroots event founded by 8 artists and reps who believed that illustrators should not accept a slow evolution toward the dissolution of their rights. The conference led to the creation of the Illustrators' Partnership - founded by 3 of the same artists- to act on the initiatives first raised at that pioneering event.

So now, as authors worldwide issue a call for cooperative action, we're pleased to note that the spirit of Santa Fe, invoked by illustrators a decade ago, is still alive and well in the US. It's the spirit that guided artists in Washington last year and with luck, it may yet swell and aid in the preservation of copyright law, which is the legal means by which the distinctive expressions of individuals are themselves preserved.