Orphan Works: “We Are Our Work”

These are excerpts from written statements submitted by the Illustrators’ Partnership to the Small Business Administration September 16. The SBA Roundtable is the only forum so far conducted by the government to consider the economic impact of the Orphan Works Act on creators. The Roundtable was chaired by Tom Sullivan, Director of the Office of Advocacy of the SBA. It was initiated by the Illustrators’ Partnership, The Artists Rights Society and the Advertising Photographers of America. It was conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. Seventeen panelists participated. Scores of others submitted written papers.

August 8, 2008: “We’re here today to speak as small business owners. Yet for most of us, art is something more than a business. Artists become artists because we want to practice alchemy - to turn the lead of experience into something that doesn’t tarnish or rust. At the heart of creativity is independence. We’re here today to defend our independence.”
– Brad Holland, Artist

“The network of contracts and agreements, the very fabric of the business of copyright that surrounds the marketing of images, has been overlooked by this legislation. This threatens the entire commerce of visual art licensing.”
– Cynthia Turner, Medical Illustrator

“Licensing is now a $187 Billion dollar industry...and most of the providers of the creative content are small business owners just like me...the [Orphan Works] changes in the copyright law... will put me and other small business owners in jeopardy of losing revenue that the licensing of our art generates for us.”
– Cheryl Phelps, Illustrator, Designer, Art Licensor, Educator

“If our government approached any other type of business and told them they could no longer own what makes their business valuable, that their intellectual property including sourcing information, trade secrets, collected knowledge of their industry and so on was now no longer theirs to own and use to prosper . . . imagine the outrage.”
– Brenda Pinnick Owner, President, Brenda Pinnick Designs, Inc.

“It is clear that this piece of legislation is part of an anti-copyright offensive waged by those who maintain that copyrights are obstacles to creativity and the free flow of ideas, as if copying, mixing, sampling and appropriation are the essence of the creative process.”
– Dr. Theodore Feder President, Artists Rights Society

“As a young artist, I owe a lot of my professional success to the internet... Copyright law, as it stands, enables us to share work with our fans online, while knowing it won’t be stolen by large corporations. What the Sean Bentley Orphan Works act does is remove this protection.”
–“Orphan Works Act-Unintended Effects,” by Molly Crabapple, Artist

“If this legislation passes, it would mean a return to pre-1976 U.S. Copyright Act when many writers' works fell into the public domain because they could not afford to comply with the formalities of registration as a condition of copyright protection.”
– By Gerard Colby President, National Writers Union/UAW Local 1981

“The financial (and technical) requirements of this Bill truly assume that an artist is “guilty of failing to comply until proven innocent.”
–“The Orphan Works Act: A View From the Trenches,” by attorney Tammy L. Browning-Smith, J.D., LL.M

“Would you rather Charlie Parker had a law degree and a well maintained data base or his bird qualities? Would you rather see Jimmie Hendrix bend his head around “Reasonably Diligent Search” or bend a string from here to eternity?”
–“Orphan Works,” by Gene Poole, Songwriter and Musician

“I know of no other trade or product that requires its creators to register with one government agency and two private ones in order to protect their rights and property from theft.”
RE: H.R. 5889 and S. 2913, the Shawn Bentley Orphan Works Act ,” by Don Schaefer Don Schaefer Studio

“ [T]he concept of creating an inclusive, cost effective database for imagery is impossible. I represented 400,000 images, had 500 portfolios of artists online, verified listings of 50,000 graphic artists, and I know the time and cost for creating databases. Not possible. Not feasible. Not cost effective. And if there were multiple, smaller databases, not workable.”
– “Orphan Works Compliance: An Impossible Burden for Small Businesses,” by Alexis Scott, Publisher of The Workbook and workbook.com

“The ‘unknown’ entities that will be developing and running the yet nonexistent searchable databases...are set to gain millions from the revenues our artwork can bring them!
– “Why I oppose the Shawn Bentley Orphan Acts of 2008,” by Gail Green, Gail Green Licensing & Design Ltd

“I fought for the rights of Superman's creators, Jerry Siegel and Joe Schuster. Others made millions while Superman's creators lived in near poverty. Jerry was a clerk and Joe was a legally blind man who lived in his brother's apartment, slept on a cot and worked as a messenger. I met and fought for their small remaining rights when they both turned only 60 years old...The battle took months and the settlement was meager, but it let the men live the remaining years of their lives with dignity. You know what they cared about most? They cared about having their names, once again, associated with their character, Superman! Why? Because it was what they were as people. They were their work. Why do we have copyright law? Because we wish to protect people and their creations, even if they are ‘hard to locate.’”
– “Orphaned Works Legislation,” by Neal Adams, Artist

“Clearly, if an image isn’t ‘found’ in a private registry, it is fair game according to your law. That’s millions, maybe hundreds of millions of images online right now that are not registered, have no statement of copyright or ownership, and will likely not be registered or removed by the time this legislation goes into effect.”
– Harry S. Murray, Letter to Ms. Marybeth Peters Register of Copyrights United States Copyright Office

“How would a person from Arkansas or Nigeria know about this law, that it even exists, that it affects him, that he has to register in an American registry for a fee, to protect his wedding picture or pictures of his children from being used by an American corporation or a non-for-profit-organization that may reflect values that are against his religion or his ethics which could add insult to injury?”
– Andre Cornellier, Copyright Chair and Ewan Nicholson, President/ Canadian Association of Photographers and Illustrators in Communication

“No member of our Society would have the time or financial means to track any unwarranted, illegal activity on the internet, let alone pursue claims against multiple parties that may avail themselves of any artwork. Nor would any illustrator have the resources to register significant collections of current and past works with a proposed system that would offer little or no protection.
– Frank M. Costantino, ASAI, SI, JARA, FSAI Co-Founder, American Society of Architectural Illustrators/ Vice-Chairman, American Society of Illustrators Partnership

“In 2006, I registered 58,731 images, and in 2007, 71,919 images. If a registry charged $0.50 per image to submit and process, I would have to pay $29,365.50 to protect my 2006 images, and $35,959.50 to protect my 2007 images, for just those years.
–“ Testimony Concerning How the Proposed Orphan Works Bill Will Economically Impact Photographers,” by John Harrington, Professional Photographer

“Total scanning, personnel, overhead= $262,560. Additionally, I would have to supervise the operation, losing about two months per year.”
– Photographer MK (NY) in response to internal poll by Advertising Photographers of America

“Even if the scanning charge were $ .25 per image, which is FAR below the current scanning prices available today, That would cost me approximately one half million dollars ( (2,500,000 images x 80%) x .25= $500,000--).”
– Photographer GF (SC) in response to internal poll by Advertising Photographers of America

“In addition to the cost of getting images ready for input into one of these registries/databases, there is the time/cost of uploading these images... which could take as long as it took to digitize the images...add another 20+ years, or another $859K.”
– Photographer RR (NY) in response to internal poll by Advertising Photographers of America

“If these fees were $1 per image, I would incur an additional $1,000,000 in registration expense.”
– Photographer JS (CA) in response to internal poll by Advertising Photographers of America

“Scanning would be over 2 million dollars to include keywording from an outside source. This is a very complicated operation and would take hours of my time to prepare. It's too expensive.”
– Photographer JS (NC) in response to internal poll by Advertising Photographers of America

“The burden of this nightmarish bureaucracy would be overwhelming in expense and complexity for artists. I can speak from personal experience that anyone who has been painting or drawing for any length of time is likely to have thousands of works of art that he would have to pay to digitize and file with one of these companies. And, the Copyright Office has made it clear that failure to register a work with these private companies would automatically render it an orphan, available to be copied by infringers with impunity.”
– Frank Stella, Artist

“If I had to scan all the images I have made in the past 40 years... in order to post them to a registry, the burden of such an expense would cripple me...[F]or the past 40 years I have been building a library of my creative work believing that this was my retirement and my estate. If I have no protection of this work than my estate will have been essentially bankrupted.”
–Barbara Bordnick Photography

“[T]he business model that would be created from this legislation...would doom such a large portion of the creative community that the end result would drastically reduce the artistic diversity our country has prided itself on and the rest of the world has been envious of.”
– Photographer RB (NC)

“[S]ince the expense of registering works will be born by the creative community the expense of copyright protection will be socialized while the profit of creative endeavors will be privatized. “
– Orphan Works Statement By David Rhodes President, School of Visual Arts

“Even if we digitize our artwork, paid to have it uploaded on private databases, thousands and thousands of artists would not, could not or wouldn’t know that they would have to do this extra work to protect their copyrights.”
– Lynn Reznick Parisi, Business Manager Atlantic Feature Syndicate/off the mark cartoons

“The Copyright Office ignores the realities of the market place and places the rights of copyright owners at great risk.” -“Are all Copyright Owners to Become Orphans?”
–Cheryl Hodgson, Esq., President, California Copyright Conference

“Why would conflict photographers who risk their lives on a daily basis to cover important news stories so the world can remain informed, be willing to do so if they thought their work could and would be easily appropriated by others?
–Debra Weiss, Creative Consultant

“When a manufacturer wants to feature an artist’s work on one or more of their products, it is important to them that they are the only company who has the right to reproduce that design on that particular product. If other manufacturers are able to put the same design on the same product then it hurts the licensee.”
–Joanne Fink, President, Lakeside Design

“By opening the floodgates to unauthorized use of protected works, the legislation will result in a tidal wave of litigation as the result of rampant and widespread violation of the rights of publicity and rights of privacy of persons pictured in the orphan works...This wave of litigation between models, photographers and the users of orphan works over publicity and privacy rights will be a particularly disastrous consequence of the proposed amendment.”
–Constance Evans, National Executive Director, Advertising Photographers of America

“As an inspirational painter of children, my work is licensed to manufacturers and businesses. The Orphan Works Act of 2008 will create tremendous overhead for my business and an ethics challenge for controlling my message. The message is as important as the artwork; it is my ministry and my career.”
– Kathy Andrews Fincher, Kathryn Andrews Fincher, LLC

“Biomedical and scientific illustrators are not opposed to usage of orphaned works by the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education. However this legislation makes no limitations for these purposes and will dangerously expose copyrighted visual content to infringements while stripping the intellectual property holders of any practical means to protect their work.”
–Biomedical and Scientific Illustrators' Opposition to the Orphan Works Act of 2008

“The infringer is free to use any work in any manner—there are no restrictions on how a particular work may be used. One of our members recordings could end up in a motion picture—of any rating—a political advertisement or other commercial, or in a mashup that will alter the sound quality and characteristics of the original recording beyond recognition.”
– American Association of Independent Music (“A2IM”)
“Position Paper on the Current Proposed Orphan Works Legislation in the United States

“The Advertising Photographers of America (APA), the National Press Photographers Association (NPPA), the Stock Artists Alliance (SAA) and Editorial Photographers (EP) have all stated they cannot support the Orphan Works bills in their current form. Together, these groups represent more professional media photographers than other U.S. organizations.”
–From “Leading Photographer Associations Urge Congress to Amend Orphan Works Legislation”

“The inherent danger in remixing a medical animation or illustration is that ignorant people can change the meaning, intention or scientific accuracy of an image. They can damage the reputation of the studio from where the work originated.”
–Dena L. Matthews Biomedical Illustrator

“I was the plaintiff in a recent copyright infringement case and I can testify that the full remedies of the current law were necessary for me to prevail...The case took me four years and nearly $100,000 in legal fees, but I was able to prove that the infringement was a willful act, conducted in bad faith by a major corporation.”
– How Camel Cigarettes Orphaned My Work” by Michiko Stehrenberger

“Not only was my art desecrated and devalued in the ‘Orphaning’ process but my original specialized art was made to compete with me to my own client while others in the chain of infringements monetarily gained from its value and I received none.”
–“Orphan Works, Unmasked” by Andrea Mistretta

“Big publishing companies can ensure that their works are never orphaned...Even the Copyright Clearance Center insists that it is not possible to track the use of illustrations which appear in published work. Thus, they refuse to pay compensation to artists, even though those artists often retain all rights, including reprographic rights - to their work. If the CCC is correct that it’s impossible to track ownership of illustrations, then virtually all published artwork may be designated as orphaned.”
– James Perkins, Medical Illustrator

“NARIP takes issue with this legislation because there is no responsibility to the creative community, it's all about users. We've seen a remarkable shift from incentivizing creators and enabling them to protect their personal property, to ‘let’s provide a means and find a way to protect infringers so we can make sure they're not prosecuted.’ ”
–By Tess Taylor, National Association of Record Industry Professionals

“The Orphan Works bill has the potential to erode the protection that copyright owners have fought for over many years. It puts the burden on the copyright owner to find the offending parties and either negotiate with them without the remedies currently available to bring about reasonable compensation or bring costly litigation. In short, for copyright owners, the Orphan Works bill is a disaster.”
–Attorney Steve Winogradsky, Past President, Association of Independent Music Publishers and California Copyright Conference

“In 2004, the Copyright Office initiated a theory, with the enthusiastic support of the anti-copyright lobby, that the public was being harmed because it didn’t have enough current contact information for authors and owners. The Copyright Office then requested Orphan Works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation on how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.”
–Association of Independent Music Publishers (AIMP) and California Copyright Conference (CCC) Joint Position Paper on Orphan Works Legislation

“The steps taken by illustrators over the past few years to address similar changes in their marketplace demonstrate that the incentives of the marketplace should be allowed to work without government intervention such as the Orphan Works Act, a bill that will permanently weaken the rights to the work these stakeholders create.”
–Terrence Brown, Executive Director, American Society of Illustrators Partnership

“As an artists advocate for over 20 years...I am deeply concerned that the drafters of the legislation clearly did not do the needed research and outreach to the artists advocates,, the artists community, the small business community, and the ‘minority’ communities before crafting the language of this legislation.”
–Kathleen Bitetti, Artist and Executive Director, Artists Foundation

“[W]hile the Copyright Office proposal immediately and unfairly prejudices the little guys in the creative economy, it sets a long term precedent that eventually could come back to haunt even those with deep pockets to defend themselves like Hollywood and Silicon Valley.”
– “Orphan Works Legislation – a Bad Deal for Artists,” by Bruce Lehman, Esq., Former Commissioner US Patent & Trademark Office

“Illustration work allows me to provide for my family; teaching allows me to give back to the community. My belief in stewardship brings me to the Orphaned Work Bills. This legislation strikes at the core of what we are as illustrators, how we do our business and why we chose to be illustrators.”
– CF Payne, Artist

The SBA Roundtable is the only forum so far conducted by the government to consider the economic impact of the Orphan Works Act on creators. The Roundtable was chaired by Tom Sullivan, Director of the Office of Advocacy of the SBA. It was initiated by the Illustrators’ Partnership, The Artists Rights Society and the Advertising Photographers of America. It was conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. Seventeen panelists participated. Scores of others submitted written papers.

The full written statements are now available as five PDFs.

Part 1: Illustrators, Fine Artists, Art Licensors, Art Educators, Copyright Attorneys
http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

Part 2: Cartoonists
http://www.scribd.com/doc/6210791?secret_password=1afd1r7sc8zltika8ct

Part 3: Photographers
http://www.scribd.com/doc/6210796?secret_password=ai90pgbz4xte6c3d80a

Part 4: Musicians & Writers
http://www.scribd.com/doc/6210808?secret_password=24doq9ainoadl3dqhnkn

Part 5: Amendments to H.R. 5889 & S. 2913
Articles in the Press
Submission to 2005 Copyright Office Study
http://www.scribd.com/doc/6210817?secret_password=2cdverotovlf9h15e2y1

To review the agenda, the panelists and their biographies, go to the IPA blog:
http://ipaorphanworks.blogspot.com/2008/08/80808-sba-hearing-on-orphan-works.html

The webcast is available here:
http://videos.cmitnyc.com/asip.html