Sunday, February 26, 2006

Webcast: Orphan Works Debate at Washington College of Law

On February 24, the Washington College of Law presented a timely Orphan Works Debate. A webcast of the program is now available. It is 2 hours long, with one hour devoted to each panel. You will need Windows Media Player to view it. Follow these links:
On this page look under the horizontal rule line for the heading that says:
Password: "ipclinic"
Click on the link, and enter the password.

For those who don’t yet know, Congress is at work on a major change to U.S. Copyright Law. Orphan Works legislation is now being fast-tracked in both the House and Senate. It would seriously impact the careers of illustrators and photographers by limiting or removing penalties for infringement where works have been published without identifying information. The proposed legislation would affect both foreign and domestic work and it would be retroactive. Joining in the discussion were representatives of groups who both favor and oppose these changes.

Prue Adler (Association of Research Libraries),
Jonathan Band (counsel to the Library Copyright Alliance),
Kathleen Franz (American University History Dept.),
Stephen Gottlieb (Recording Industry Association of America),
Brad Holland (Illustrators' Partnership of America),
Robert Kasunic (U.S. Copyright Office),
Eugene Mopsik (American Society of Media Photographers),
Jay Rosenthal (counsel to the Recording Artists Coalition),
Jason Schultz (Electronic Frontier Foundation),
Eric Schwartz (Smith & Metalitz),
Matt Skelton (U.S. Copyright Office),
Jule Sigall (U.S. Copyright Office),
Rebecca Tushnet (Georgetown Law Center),
Jennifer Urban (USC Law School, who filed comments for documentary filmmakers).

For illustrators who would like to go directly to an analysis of this legislation’s effect on our profession, Brad Holland's presentation begins at 68:10 minutes.

The Board of the Illustrators’ Partnership of America

Orphan Works Express

Congress is scheduled to commence Orphan Works hearings the first week in March.

They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.

The spin that’s being put on this legislation is shrewd. Special interest groups have re-defined copyright users as “creators” of “transformative works.” They're trying to persuade lawmakers that these “creators” are being hampered because of obsolete protections on work which has “little or no commercial value.” Yet the omnibus measures proposed in this Report would affect any work - old or new —that’s been published without identifying information. This would apply disproportionately to illustrations and photographs. We need to make it clear to Congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.

Orphan Works legislation would be retroactive: This means that all the work you’ve done during the last 28 years could fall into the Orphan Works category if it was ever published without “relevant information” on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture you’ve ever done — published without “identifying information” on it - or with that information removed by others — to justify an infringer’s claim that he was unable to locate the author.

Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer (if found guilty) is that he would have to pay you what he would have paid you in the first place. For 28 years (since the 1976 Copyright Act went into effect), you’ve been told that your work was protected “from the moment you put pen to paper.” No more. And artists who for 28 years produced work with the confidence that it was protected will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades. This is very bad legislation.

The plot in a nutshell. It’s not an accident that this is happening now. Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright “formalities” such as marking and registration. This would aid the spread of “free culture” because most artists would fail to mark and register their work (or marks could be removed). This would make a vast number of illustrations and photographs available for anyone to use or for companies like Google to sell access to.

Unfortunately for the free culturists, the US can’t re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt American trade.

So the Copyright Office has crafted their orphan works proposal as a “limitation on remedies.” This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without “relevant information” on the picture itself. In effect, this would force artists —as a hedge against infringement — to re-impose on themselves the “formalities” the government can’t. Any artist who didn’t mark his work would expose it to no-fault infringement - a very clever way to re-impose formalities without actually doing so.

Remember, this is all being done in the name of promoting creativity by artists. That’s why we, as artists, have to speak up. We have to say that the Free Culture movement and the creative wannabes do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.

What you can do. In their effort to speed this legislation through Congress, the plan's shepherds are severely limiting testimony for and against it. That’s why your letters are important.

Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don't have to write a complicated letter, but it's important that you make certain points:

-Make it clear that you’re an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.

-Make it clear that you will never have the resources to police infringement of your work - which could occur at any time anywhere in the world.

-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.

-Make it clear that your work has significant commercial value.

For artists, this legislation would be a major revision of copyright law. In effect, a repeal of the 1976 Act. The Orphan Works Report calls for a 10 year “sunset provision,” which means that the legislation will be subject to reevaluation in 10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them.

We can’t wait until this law “sunsets” before having a chance to express ourselves on it. Please write as soon as you can.

— Brad Holland for the Board of the Illustrators' Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

Friday, February 24, 2006

Call for Action: Prevent Orphan Works Amendment to U.S. Copyright Law

Tuesday, Victor Perlman, attorney for the American Society of Media Photographers went to Washington to register ASMP’s opposition to the recent Orphan Works Report.

Last week, Vic phoned us and asked if he could speak for IPA as well. We sent him the letter we submitted to the Copyright Office last year and said he could tell Senators and Congressman that it expressed the opposition of the 42 arts organizations in the U.S. and throughout the world, and the nearly 2,000 artists who signed it.

Orphan Works legislation is being championed by museums, libraries, archives, foundations and Free Culture advocates, and there is concerted pressure on Congress to write the recommendations into law before the end of this session.

This legislation jeopardizes visual artists’ copyrights and robs artists of income. We need to make sure that lawmakers hear from the people who will be hurt by these harmful changes to the 1976 Copyright Act. To do this effectively, all illustrators and photographers need to make their voices heard. ASMP has already asked their members and others to commence a letter writing campaign to lawmakers.

We urge all artists to do the same, and to act quickly to express your opposition to your Congressional representatives. We wouldn’t ask unless it was vital. This is a make or break moment for artists, creative authorship, and the exclusive rights guaranteed to artists under U.S. Copyright Law and the Berne Convention.

For maximum impact, we urge visual rightsholders to fax letters on your letterhead. E-mails don’t carry the same weight, and neither do form letters. We are providing a sample letter for you, but we recommend you modify it with your own points, or write your own letter. We are providing the complete list of those to contact at the bottom of this message. Or you may wish to use the excellent resource of tools to simplify faxing to legislators graciously provided by ASMP at

— Brad Holland and Cynthia Turner
For the Board of the Illustrators' Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

Re: Orphan Works Copyright Legislation

Dear (Senator or Representative) ____________________:

(Identify yourself and include a one or two sentence description of your specialty and/or affiliations) ____________________________________________________.

I’m writing to express my opposition to the conclusions expressed in the U.S. Copyright Office Orphan Works Report. The 1976 Copyright Act guarantees me as an artist the exclusive right to authorize or withhold reproduction of my work and to create derivative works. It guarantees this from the moment I fix the work in a tangible form, and it guarantees this without imposing formalities such as a copyright mark or registration. The Berne Convention for the Protection of Literary and Artistic Works forbids such formalities as a condition on my enjoyment and exercise of copyright. This is particularly important for visual artists because many works appear without credit lines or identifying information. The explosion of unauthorized posting on the internet has increased instances of unidentified work.

The Orphan Works provision constitutes a loophole that will jeopardize the copyrights of thousands of freelance artists such as me, and do so retroactively. Although the Orphan Works report states that it does not re-impose formalities, I fear that for all practical purposes the proposed amendment will have that effect.

All work created by all artists throughout the world, regardless of age, whether published or not, whether of U.S. origin or abroad, will be subject to orphan works claims.

The provision shifts the burden of diligence from the owner to the user. I see no practical way that I could monitor any potential infringement of my work in any publication or database anywhere within the reach of the internet. My creative work is one of the most personal forms of private property that I have because it wouldn’t exist without the specific expression that is the result of my outlook and experience. Nothing in the Orphan Works Report justifies the exploitation of my private property by others.

I’m also afraid the penalties provision is another glaring loophole for anyone who chooses to make payment for usage the option of last resort. Once a work has been published there is no certain way to establish a reasonable fee. Any user can offer any fee, and unless I’m agreeable to the offer I have no option but to file a prohibitively expensive lawsuit that would cost more than I could recover. I’m therefore afraid that this part of the Orphan Works provision would constitute a no-fault license to infringe.

Several times in the Orphan Works Report unvalidated assertions are made that orphan work has little or no commercial value. This is contrary to my entire professional experience. The work that I create constitutes a valuable inventory that I can license any time, now or in the future, as part of my day-to-day business. Nothing in the universal copyright conventions gives any user the right to devalue my inventory for their own gain.

I believe that the answer to those instances of users who wish to use genuine visual art orphan works be confined to the specific instances that have been identified, such as family photo restoration, genealogy research and historical archiving, and be handled with specific limited exemptions to the Copyright law, just as many other countries have done.

I ask you to reject any legislation that would further undermine copyright protection for artists.

Respectfully yours,
(your name)

Who to Fax
Before you start keying numbers, you might want to check ASMP’s tools for automating the faxing process. They can be found at

There are a lot of people to contact. For those for whom this is an unreasonable burden, we recommend you send to at least these:


• Senator Orrin Hatch, Chairman
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-6331

• Senator Patrick Leahy, Ranking Member
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-3479

• Congressman Lamar Smith, Chairman
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-8628

• Congressman Howard Berman, Ranking Member
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-3196

• and to your Senator, listed here:

• and to your Representative
He or she can be found by entering your state and zip code on this page:

The Senate Judiciary Committee

Arlen Specter - Pennsylvania - Fax (202) 228-1229

Orrin G. Hatch - Utah - Fax (202) 224-6331

Patrick J. Leahy - Vermont - Fax (202) 224-3479

Edward M. Kennedy - Massachusetts - Fax (202) 224-2417

Jon Kyl - Arizon - Fax (202) 224-2207

Joseph R. Biden, Jr. - Delaware - Fax 202-224-0139

Mike DeWine - Ohio - Fax (202) 224-6519

Herbert Kohl - Wisconsin - Fax (202) 224-9787

Dianne Feinstein - California - Fax (202) 228-3954

Lindsey Graham - South Carolina - Fax (202) 224-3808

John Cornyn - Texas - Fax (972) 239-2110

Sam Brownback - Kansas - Fax (202) 228-1265

Richard J. Durbin - Illinois - Fax (202) 228-0400

Tom Coburn - Oklahoma - Fax 202-224-6008

The House Judiciary Committee

F. James Sensenbrenner - Wisconsin - Fax (262) 784-9437

Henry J. Hyde - Illinois - Fax (202) 225-1166

Lamar Smith - Texas - Fax 202-225-8628

Elton Gallegly - California - Fax (202) 225-1100

Bob Goodlatte - Virginia - Fax (202) 225-9681

William Jenkins - Tennessee - Fax (202) 225-5714

Chris Cannon - Utah - Fax (202) 225-5629

Spencer Bachus - Alabama - Fax 202 225-2082

Bob Inglis - South Carolina - Fax (202) 226-1177

Ric Keller - Florida - Fax (202) 225-0999

Darrell Issa - California - Fax (202) 225-3303

Mike Pence - Indiana - Fax (202) 225-3382

J. Randy Forbes - Virginia - Fax (202) 226-1170

Louie Gohmert - Texas - Fax (202) 225-5866

John Conyers, Jr - Michigan - Fax (202) 225-0072

Howard L. Berman - California - Fax (202) 225-3196

Rick Boucher - Virginia - Fax (202) 225-0442

Zoe Lofgren - California - Fax (202) 225-3336

Maxine Waters - California - Fax 202-225-7854

Marty Meehan - Massachusetts - Fax (202) 226-0771

Robert Wexler - Florida - Fax (202) 225-5974

Anthony Weiner - New York - Fax (718) 520-9010

Adam Schiff - California - Fax (202) 225-5828

Linda Sanchez - California - Fax (202) 226-1012

This e-mail may be forwarded and/or posted in its entirety to any interested parties.

Monday, February 20, 2006

Proposed U.S. Legislation Could Orphan Copyrights

The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive.

The proposal would not re-impose formalities, but would penalize artists who didn’t re-impose formalities on themselves. The strategy is to “limit remedies” for infringement in any case where an illustration or photograph was published without “relevant information” on the picture itself - or where relevant information has been removed:

“For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’s recommendation would make such markings mandatory...Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner.” (p. 9, emphasis added)

The report does not define a “reasonable search,” but says (p. 98): “a very general standard...will have to be applied by users, copyright owners and ultimately the courts on a case-by-case basis...” There will be no statutory damages, court costs or attorneys’ fees available for artists whose work has been infringed:

“Our recommendation [limits] the possible monetary relief in these cases to only ‘reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced.” (p. 12)

By limiting remedies for infringement, the Copyright Office acknowledges that individual authors generally lack the resources to police unauthorized usage:

“While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.” ( p. 117)

The Report expresses “sympathy” for this fact of life, but states that “[t]his problem . . . has existed for some time and goes beyond the orphan works situation, extending to all types of infringement of the works of individual authors . . . It is not, however, within the province of this study on orphan works.”(p.114, emphasis added)

By suggesting that artists may have to go to court to resolve even minor publication disputes, the Orphan Works Report raises a jurisdictional question that it doesn’t answer. US Copyright law is federal law and filing a federal lawsuit is prohibitively expensive. There are only 11 Federal Districts in the US and approximately 100 US District Courts. We’ve asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Court to be paid minimum fees for unauthorized usage. Their answer was they weren’t sure, but are considering establishing a copyright small claims court. However, this still doesn’t resolve the jurisdictional issue, unless the government establishes a Federal small claims court in every city and town in the US to resolve an increased number of copyright disputes. This seems most unlikely.

Another problem with relying on small claims courts is that awards are limited to US $2,000, which would cap the "reasonable royalty" allowable for any, usage, regardless of commercial value and number of works used. Small claims judgments are also unenforceable. Also since an infringer will need only prove that he could not identify or find the artist of an unmarked image, the judge may be forced to uphold the majority of infringements, regardless of the effect it will have on the copyright holder.

The Orphan Works Report notes that many respondents to the Study proposed “registries or other databases of owner or user information” as a possible solution of tracking rightsholders, but the report states that the Copyright Office lacks the resources to create and administer them:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector, and organically become part of the reasonable search by users by creating incentives for authors and owners to ensure that their information is included in the relevant databases.” (p.106, emphasis added)

For the record, when Congress was drafting the 1976 Copyright Act, they considered and rejected Orphan Works legislation. They acknowledged that an “orphan works problem” existed, but concluded that it was outweighed by the need for copyright protection for authors:

“A point that has concerned some educational groups arose from the possibility that... a life-plus-50 year [copyright] 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...

“It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years [the term of copyright prior to 1978], would be protected much longer under the [1976] bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life-plus-50 system. Moreover, it 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. The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (emphasis added)

Congress is scheduled to commence Orphan Works hearings the first week in March. They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. The Illustrators’ Partnership opposes this legislation outright and is working with other groups to mobilize opposition in the short time we have to do it.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

This may be republished, posted or forwarded in its entirety to any interested party.