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

Orphan Works and the Google Settlement Part 3: Compelling Arguments

Compelling Arguments

On September 10, 2009, Marybeth Peters, Register of the US Copyright Office, testified before Congress in opposition to the Google Book Search Settlement. Her arguments on behalf of creators rights are compelling and we support them. However, we note with some irony that they are nearly identical to the arguments we made in opposing the Orphan Works bill last year. We don't know what conclusions to draw from this fact, but we think it's fair to draw attention to it.

We've picked several examples below and matched them with quotes from our own writings and testimony. In every case, the emphasis is ours.

Marybeth Peters on the Google Book Settlement: "The [Google] settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come."

IPA on the Orphan Works Bill: The bill's sponsors say it's merely a small adjustment to copyright law. In fact...its provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far reaching, long lasting, perhaps irreversible and will strike at the heart of art itself."

* * * * *

Marybeth Peters on the Google Book Settlement: "[The Book Rights Registry] is likely to have the unfortunate effect of creating a false database of orphan works, because in practice any work that is not claimed will be deemed an orphan."

IPA on the Orphan Works Bill: "As clients come to rely on these [visual arts] registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans."

* * * * *

Marybeth Peters on the Google Book Settlement: "Compulsory licenses... are scrutinized very strictly because by their nature they impinge upon the exclusive rights of copyright holders...By its nature, a compulsory license "is a limited exception to the copyright holder's exclusive right . . . As such, it must be construed narrowly."


IPA on the Orphan Works Bill: "[The Orphan Works bill] radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession."

* * * * *

Marybeth Peters on the Google Book Settlement: "Compulsory licenses are generally adopted by Congress only reluctantly, in the face of a marketplace failure."

IPA on the Orphan Works Bill: "The Copyright Office only received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets..." " But the Copyright Office studied the specific subject of orphaned work. They did not inquire about the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever."

* * * * *

Marybeth Peters on the Google Book Settlement: "In summary, the out-of-print default rules would allow Google to operate under reverse principles of copyright law..."

IPA on the Orphan Works Bill: "[The Orphan Works bill] creates the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available." "[I]ts logic reverses copyright law."

* * * * *

Marybeth Peters on the Google Book Settlement: "In essence, the proposed settlement would give Google a license to infringe first and ask questions later..."

IPA on the Orphan Works Bill: "Since orphan works transactions would occur only after infringement, the rights holder would have no leverage to bargain for more than the infringer is willing or able to pay."

* * * * *

Marybeth Peters on the Google Book Settlement: "[C]opyright law has always left it to the copyright owner to determine whether and how an out-of-print work should be exploited."

IPA on the Orphan Works Bill: "Under copyright law, no author can be compelled to publish his or her work. So by what right of eminent domain can Congress give strangers the right to publish our work without our knowledge, consent or payment?"

* * * * *

Marybeth Peters on the Google Book Settlement: "The broad scope of the out-of-print provisions and the large class of copyright owners they would affect will dramatically impinge on the exclusive rights of authors, publishers, their heirs and successors."

IPA on the Orphan Works Bill: "The fundamental problem with the Orphan Works Act is that it's been drafted so broadly its use cannot be confined to real orphaned work situations." "To redefine an orphaned work as "a work by an unlocatable author" is to radically re-define the ownership of private property...Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his or her own property."

* * * * *

Marybeth Peters on the Google Book Settlement: "Some foreign governments have raised questions about the compatibility of the proposed settlement with Article 5 of the Berne convention, which requires that copyright be made available to foreign authors on a no less favorable basis than to domestic authors, and that the "enjoyment and exercise of these rights shall not be subject to any formality."

IPA on the Orphan Works Bill: "[P]utting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: "The enjoyment and the exercise of these rights shall not be subject to any formality."

* * * * *

Marybeth Peters on the Google Book Settlement: "The ability of copyright owners and technology companies to share advertising revenue and other potential income streams is a worthy and symbiotic business goal that makes a lot of sense when the terms are mutually determined. And the increased abilities of libraries to offer on-line access to books and other copyrighted works is a development that is both necessary and possible in the digital age. However, none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so."

IPA on the Orphan Works Bill: "The internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist's work now can be instantly transmitted around the world without the artist's permission or control does not justify a user's 'right' to take the work."

* * * * *

Marybeth Peters on the Google Book Settlement: "[T]he settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.

IPA on the Orphan Works Bill: "This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases...For artists, the most troubling part has been our near-total exclusion from the legislative process.

"On July 11th [2008], on behalf of all those who oppose this bill, [we] submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property. Those Amendments would make this bill a true orphan works bill. The Amendments have never been considered...This is no way to re-write U.S. copyright law."

Q.E.D.

The Register's full testimony from September 10, 2009 can be found here.

Orphan Works and the Google Book Settlement / Part I

We’ve been asked for news about the Orphan Works bill. Last June Intellectual Property Watch warned that it would be back during the summer. And on June 11th, Senator Orrin Hatch confirmed his intent to reintroduce the bill. We immediately put out a notice to artists. But summer’s over and we’ve had no further news. So far, so good.

Of course Congress has had other priorities: the ongoing financial mess, the health care debate and – on the copyright front – the Google book search controversy. For those who haven’t followed the news about this Google assault on copyright, we’ll try to summarize it.

The World’s Largest Library (Or is it Bookstore?)
In 2004, Google announced its intent to digitize all of the world’s 80-100 million books – and to make most of them commercially available as orphaned works. The plan has been controversial since its inception.

Google began with the cooperation of several major libraries. The libraries gave Google access to their holdings. The problem is that libraries are libraries; they don’t own the copyrights to the books they hold. In short, they gave Google the rights to other people’s work. So far, Google has scanned over 10 million books.

In 2004, the Authors Guild and Association of American Publishers sued Google for copyright infringement. Last October the parties settled. The resulting agreement is 141 pages long, with 15 appendices of 179 pages. The implications for copyright holders are not clear, but what the litigants would get is breathtaking. As Lynn Chu, a principal at Writers Representatives LLC, wrote in the Wall Street Journal, March 28, 2009:

“[I]f approved by the federal court, [it would] permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations, by Google, online. The settlement gives the class-action attorneys $30 million; a new, quasi-judicial bureaucracy called the Book Rights Registry $35 million...and $45 million for owners infringed up to now -- about $60 a title.” http://online.wsj.com/article/SB123819841868261921.html

Google would keep just over a third of the profits generated by selling these books online. The rest would go to the Book Rights Registry run by publishers’ and authors’ representatives. In other words, 63% would go to the parties that sued Google. In theory, the Registry would attempt to locate the authors of orphaned works and pay them royalties. But as Ms. Chu points out, the parties that sued Google – and would therefore benefit from Google’s infringement – have themselves traded away other people’s rights in the bargain:

“No one elected these ‘class representatives’ to represent America's tens of thousands of authors and publishers to convey their digital rights to Google. Nor are the interests of this so-called class identical.”

The US Department of Justice apparently agrees. Last Friday, it filed an objection to the settlement and advised the court to reject the settlement as written. On page 9 of their brief, the DOJ attorneys write:

“The structure of the Proposed Settlement itself, therefore, pits the interests of one part of the class (known rightsholders) against the interests of another part of the class (orphan works rightsholders). Google’s commercial use of orphan works will generate revenues, which will be deposited with the Registry. Any unclaimed revenues, however, will inure to the benefit of the Registry and its registered rightsholders. Thus, the Registry and its registered rightsholders will benefit at the expense of every rightsholder who fails to come forward to claim profits from Google’s commercial use of his or her work...

“The greater the economic exploitation of the works of unknown rightsholders by Google and the Registry, the stronger the incentive for known rightsholders to retain the unclaimed revenues for themselves.” [Emphasis added]

The Department of Justice also warns that the settlement fails to comply with copyright, antitrust laws and the rules of class action litigation. http://www.usdoj.gov/opa/pr/2009/September/09-opa-1001.html

The US federal court was scheduled to hold a fairness hearing October 7. But over 400 objections from around the world have been filed by rightsholders, competitors to Google and (in addition to the US government) the governments of France and Germany. Yesterday we received news that the fairness hearing has been delayed.

The Google settlement has also been condemned by Marybeth Peters, Register of the US Copyright Office. Testifying before the House Judiciary Committee last Wednesday, Ms. Peters stated that it would allow Google to “operate under reverse principles of copyright law,” adding “it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come.” http://www.copyright.gov/docs/regstat091009.html

We haven’t had much to say about this agreement because, with the notable exception of childrens’ book illustrations (which for purposes of the settlement are considered part of the text) the agreement doesn’t include visual art. Yet like the Orphan Works bill itself, the Google Book Settlement would be a radical change to copyright law.

Tomorrow we’ll examine some of the ways in which this settlement parallels the Orphan Works bill.

Orphan Works: Back Again

In Orphan Works Land, no news has been good news, but that's about to change:

http://www.ip-watch.org/weblog/2009/06/11/copyright-holders-acknowledge-losing-battle-for-public-consciousness-at-world-copyright-summit/

US Copyright Register Marybeth Peters told Intellectual Property Watch that orphan works legislation is expected to be introduced within the next 10 days. It is her understanding there may still be some issues in the House version to be resolved, and there are some stakeholders - such as illustrators and other artists - "who are probably going to lobby pretty hard against it."

Peters said this issue is important to her, and the fact it came so close to passing last year is almost bittersweet. "What I hope it isn't ... is it's one magic moment you get" to finally get it passed, then it doesn't happen, she said.

We don't mean to disparage the Register's comments. She's had a long and distinguished career at the Copyright Office. But her statement deserves a reality check. Illustrators are not opposed to an orphan works bill. We're opposed to this bill.

We're opposed because its scope far exceeds the needs of responsible orphan works legislation.

Moreover, illustrators and artists are not the only stakeholders who oppose it. At last count, more than 83 creators organizations are on record against it, representing artists, photographers, writers, songwriters, musicians and countless small businesses.

Last year, we proposed amendments to the Orphan Works that would have made it a true orphan works bill. The amendments were drafted by the the attorney who was chief legal counsel to the House Judiciary Committee in drafting the 1976 Copyright Act. The amendments were co-sponsored by the Artists Rights Society and the Advertising Photographers of America. They can be found here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

On July 11, 2008, we submitted those amendments to both the House and Senate Judiciary Committees. In our preamble we wrote this:

As rights holders, we can summarize our hopes for the Orphan Works Act simply: to see that it becomes a true orphan works bill, with no unnecessary spillover effect to damage the everyday commercial activities of working artists. We'd be happy to work with Congress to accomplish this. No legislation regarding the use of private property should be considered without the active participation of those whose property is at stake.

Last year more than 180,000 letters were sent to lawmakers from our CapWiz site. These letters did not come from obstructionists. They came from citizens whose property is at stake. They may lack the resources of big Internet companies and the access of high powered lobbyists, but last year they spoke. They asked only one thing: that Congress respect their personal property rights and amend this bill to make it nothing more than what its sponsors say they want it to be – a bill that would affect only true orphaned work.

We urge this Congress to listen.

Appeal to House Judiciary

December 8, 2008

The Honorable John Conyers, Jr.
Chairman Committee on the Judiciary
U.S. House of Representatives
2426 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairman Conyers:

On behalf of more than 81 professional organizations – and more than half a million small business owners, we are writing to express our grave concern about the controversial Orphan Works Act of 2008 (HR 5889). We’ve been advised that the Judiciary Committee may try to place it on the Suspensions Calendar and pass it by unanimous consent. Please don’t allow this to happen. This is no way to pass a controversial bill opposed by your constituents. It would strip them of their intellectual property rights without due process.

None of the organizations or businesses listed in the attached sheet – and the number is growing as more people learn about it – had a voice in drafting this bill, yet all citizens stand to be harmed by it. We believe that an orphan works bill can be perfected, but we do not believe there is time to perfect it in a lame duck session. We are therefore urging that this bill be held over until the next Congress, when we would pledge the positive input of the creative community to see that a true orphan works bill is passed.

When Chairman Berman held the single open hearing on this bill March 13th before the Subcommittee on the Courts, the Internet and Intellectual Property, he acknowledged that it was not a true orphan works bill. Let us quote him exactly:

“[W]e should correct a misnomer,” [he said]. “The works we’re talking about are not orphans...The more accurate description... is probably an unlocatable copyright owner...But for the sake of ease we’ll keep talking about them as if they’re orphans.”

With all due respect to the Congressman, if this bill is not about orphaned work, we do not think it should be passed as if it were one. Conversely, if its goal is to make the work of ordinary citizens available as commercial content to large internet databases, such a transfer of rights should be openly and transparently debated on its own merits.

An orphaned work is a work whose author has died or abandoned his copyrights. This bill would redefine an orphan as “a work by an unlocatable author.” This would radically re-define the ownership of private property. This bill, as written, would permit any person to infringe any work by any author at any time for any reason – no matter how commercial or distasteful – so long as the infringer found the author sufficiently hard to find. Since everybody can be hard for somebody to find, this voids every rights holder’s exclusive right to his or her own intellectual property as required by the U.S. Copyright Act. It creates the public’s right to use private property as a default position, available to anyone whenever any property owner fails to make himself sufficiently available to any would-be user.

The Orphan Works bill is being presented as a minor adjustment to Copyright Law. It is not. This bill – in both houses of Congress – would affect the most personal form of private property that exists – the work that citizens create themselves, the work they use to make a living, the work they use to express their time on Earth. It would affect any form of creative expression – from professional artwork to family photos, home videos, songs and lyrics – and anything that anyone has ever been placed on the Internet. It would affect the work of living authors who are still actively licensing their work.

The stated purpose of the bill is to benefit libraries and museums. But if so, why have the doors been opened wide for commercial infringement?

On the premise that culture will be harmed if authors can’t be found, this bill would “pressure” copyright holders to surrender access to their commercial inventory, metadata and licensing information to privately owned commercial databases. Unregistered work would be vulnerable to potential infringement. Since no rational business owner would voluntarily turn over private business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners. And since copyright holders would have to digitize their entire inventory at their own expense to comply, this bill would socialize the cost of compliance while privatizing the profits from creative work.

The bill’s drafters have relied on the 2006 Report on Orphan Works, issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not inquire into the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever. This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases.

The first – and so far only – effort to assess the economic impact of this legislation on the creative community came on August 8, 2008 when the Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. Participants represented artists, writers, photographers, songwriters, musicians, performers and many collateral small businesses. Panelists stressed several key points:

• The high cost of compliance would make it impossible for many small business owners
to comply; yet
• Failure to comply could lead to loss of intellectual property.
• The loss of exclusive rights would breach the sanctity of contracts, and
• Devalue the work of rights holders in their derivative markets.

For the 81 groups in the enclosed list, the most troubling part of this has been our near-total exclusion from the legislative process. To counter the protests of copyright holders, special interests have tried to dress up the House bill with complicated provisions, calling them “speed bumps” for infringers. For example, the House bill requires an infringer to perform a “qualifying search” – where a qualifying search is defined as one that is reasonable and diligent but reasonable diligence is left for the courts to define. Who wants to go to court to seek payment after your work has been used? We’re business people. We make our livings through voluntary business transactions, not lawsuits. Any bill that drives business decisions into the courts is bad for business and bad for the courts.

To understand this bill, we have to go to the heart of the matter. By defining millions of works as orphans on the premise that some might be, this bill will allow Internet content providers to profit by harvesting and monetizing the work of ordinary citizens, providing their databases with content they could never afford to create themselves nor license from authors.

In light of the meltdown on Wall Street, we do not think it’s wise for Congress to concentrate our nation’s copyright wealth in the hands of a few corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel small business owners to subsidize their business models. That means it would be the assets of ordinary citizens at risk in the event of their failure, mismanagement or corruption. The consequences of this step will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of property ownership.

On July 11th, on behalf of all those who wish to see a true orphan works bill, the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property.* The Amendments have never been considered. A new Congress would have the opportunity to do so. Please do not allow this legislation to pass until it can be subjected to an open, informed and transparent public examination.

Sincerely,

Brad Holland, Illustrators' Partnership
212.226.3675, brad-holland@rcn.com

Cynthia Turner, Illustrators' Partnership
850.231.4112, cynthia@cynthiaturner.com

Dr. Theodore Feder, President, Artists Rights Society
212.420.9160, tfeder@arsny.com

Martin Trailer, President, Advertising Photographers of America
800.272.6264, Martin.Trailer@APAnational.com


*H.R. 5889 Amendments available here:
http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

Senate Hotline Revisited

Yesterday, many of us received a letter from our Senator, one of the most prominent lawmakers in the country, expressing his support for strong intellectual property rights protections as a necessary stimulus to creativity and entrepreneurship.

He stated that the Shawn Bentley Orphan Works Act of 2008, S.2913 “is currently being carefully considered by the Senate,” and he assured us:

“Members of my staff have met with representatives of artists and small business owners who have expressed many of the same concerns you mentioned. I will continue to closely study developments on this bill and I will work with both my Senate colleagues and the...artist community to ensure that any bill that is ultimately passed appropriately balances these competing concerns.”

We’ve written to the Senator to inform him that the Shawn Bentley Act passed in the Senate on September 28, 2008, by unanimous consent, including his.

Frankly, we don't blame the Senator for not knowing that he's allegedly consented to a bill that would strip his constituents of their intellectual property rights without due process. Considering the way this controversial bill was drafted behind closed doors and passed by hotline, we suspect many Senators aren’t aware that they’ve “consented” to this radical change to U.S. Copyright law either.

This makes it all the more important that the House not pass their version of this bill (H.R.5889) by a similar legislative maneuver.

Orphan Works legislation should be held over until the next Congress and subjected to an open and transparent public debate. Laws affecting the intellectual property rights of all citizens should not be brokered by lawyers and lobbyists in backroom deals.

Monday the Senate will convene for a lame duck session. A spokesman for House Speaker Pelosi confirmed yesterday that the House will convene on Tuesday. For now, the House is where we need to focus our attention.

House sources continue to assure us that Orphan Works is not on the agenda. However every prior effort to pass the bill by legislative maneuver was prefaced by similar assurances, so we believe it’s in our best interests to stay vigilant. We’ll update you as we learn more.

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

Starting Monday we’ll conclude our series of little known facts about this legislation.

Orphan Works: A Lame Duck Countdown, Part IV

Moving The Cats' Food

The Copyright Office received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets and concluded that government should “incentivize” creators to register their work with for-profit registries as a condition of protecting their copyrights.

Officially, this goal is expressed benignly on page 106 of the Copyright Office’s Report on Orphan Works http://www.copyright.gov/orphan/orphan-report.pdf:

“[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...” (Emphasis added)

But later, in defending their proposal, the Report’s principal author stated the case in more coercive terms. Speaking at a Congressional Seminar March 31, 2006, Jule Sigall of the Copyright Office noted that visual artists had failed to “collectivize” to create such registries. And comparing artists to cats who can’t be herded, he said:

“You can’t herd cats, but you can move their food... It’s really what kind of incentives, what kind of pressure and how you put on the right pressure.”*
http://www.pff.org/events/pastevents/033106orphanworks.asp

To which another panelist, the lobbyist for Getty and Corbis, replied: “The tough love theory of copyright policy. We’ll take the food away and then you’ll be motivated to go find where it is.”*

But putting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: “The enjoyment and the exercise of these rights shall not be subject to any formality.” (Emphasis added) http://www.law.cornell.edu/treaties/berne/5.html

This principle has been incorporated into the Universal Copyright Convention and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These agreements acknowledge narrow limitations and exceptions to the exclusive right of copyright - so long as the exceptions don’t exceed the constraints of the TRIPS Three-Step Test:

“Member [countries] shall confine limitations and exceptions to exclusive rights to:

(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rightsholder.” http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm

And as legal scholars Jane Ginsburg and Paul Goldstein have noted in their orphan works comments:

“[T]hese rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time. 1., p. 1, OWR0107-Ginsburg-Goldstein (Boldface added). http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf

The backers of the Orphan Works bill [H.R. 5889] argue that their proposals won’t violate these agreements because the bill won’t explicitly legislate formalities. It would merely expose to infringement the work of rightsholders who don’t impose formalities on themselves. Just moving the cats’ food.

Contrast that sentiment with the comments from one of our country’s leading illustrators, C.F. Payne, who submitted his thoughts to the Small Business Administration Roundtable on Orphan Works last summer:

“[The Orphan Works bill] promises to protect artists’ work by pressuring them to register every single work of art with commercial databases...This would impose an impossible burden of compliance on me. I doubt that I could participate. Yet if I do not, I would be exposing my life’s creative output to unfettered infringement. This is not in the spirit or intent of copyright and it is not the way our government should pressure creators to deal with their private property.

“I believe myself to be a steward of the best traditions of our craft...

“For thirty years I have worked to build a body of work I can pass on to my children. I hope it will be a source of inspiration for others. For twenty years I have taught, hoping to pass on what I can to the next generation. And, for 10 years I have worked with other illustrators through the Illustrators’ Partnership to see that our business concerns are presented in a professional and responsible way.

“I do not want it said that we in our generation failed to do the necessary work to ensure future generations the opportunities they are entitled to for a fertile career. If government does not emasculate copyright law, my body of work will sustain me for the 25 or so years left in my career. But I have students with hopes for 50 plus year careers. They want to provide for their children with their art.

“In addressing this Roundtable, I hope to have my statement heard by lawmakers. So to them, I would like to say that in opposing this legislation we are not seeking a favor. We are not looking for any special treatment from the law or government. Rather we are looking to Congress for the sense of fair play established by our Constitution. How Congress decides this legislation will be a measure of how we as a nation treat the individual and the individual’s property.”
http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

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

*Quotes from page 24 of the transcript of “Orphan Works: A Search for Solutions,” Congressional Seminar hosted by the Progress and Freedom Foundation, March 31, 2006. Mr. Sigall’s full title at the Copyright Office was Associate Register for Policy & International Affairs http://www.pff.org/events/pastevents/033106orphanworks.asp

Tomorrow: Through the Looking Glass: The False Logic of “Market Failure”

The Orphan Works Act of 2008 (H.R. 5889) has not been passed by the House of Representatives, but could be placed on the Suspensions calendar and passed by the lame duck session of Congress scheduled to re-convene next week. The Illustrators’ Partnership is asking lawmakers to hold the bill over to the next session of Congress, when rightsholders can have an opportunity to have their case heard before the full Judiciary Committee.

Orphan Works: A Lame Duck Countdown, Part II

The Legislative Blueprint

The “legislative blueprint” for the Orphan Works Act was not drafted by the Copyright Office after their year-long Orphan Works study, but before it, by law students at the Glushko-Samuelson Intellectual Property Law Clinic.

Their Copyright Clearance Initiative (CCI) is the document that first proposed the “limitation on remedies” that would radically change international copyright law. From page 5 of the CCI proposal:

“Under no circumstances will Sec. 504(c) statutory damages, attorney’s fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.” http://copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

This is the premise the Copyright Office adopted with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office proposals changed that to an ambiguous “reasonable fee.”

And how did the student authors describe their study of the orphan works issue?

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem...and has been in close contact with various non-profit organizations, intellectual practitioners and academics...”

A footnote names the eight “clinic students” who contributed to the “legislative solution.” And among the “interested parties,” the authors cite Public Knowledge, a group now actively promoting the Orphan works bill. Copyright holders were apparently not considered interested parties, as none are listed among those invited to participate.

The Clinic authors submitted their blueprint to the Copyright Office March 24, 2005. They cited no effort to survey the potential impact of their legislative solution on commercial markets – nor did the Copyright Office three years later, when they adopted the “limitation on remedies” and proposed it to Congress in their 2006 Report on Orphan Works.

The Director of the Glushko-Samuelson Law Clinic is a long-standing critic of existing copyright protections.

In 1994, legal scholar Peter Jaszi wrote that in the new “information environment” created by the internet, authors, artists and others “may not need the long, intense protection afforded by conventional copyright -- no matter how much they would like to have it.”

Copyright, he wrote, is rooted in outdated concepts of “possessive individualism.” The “romantic myth of authorship,” he argued, is a vestige of the 18th and 19th centuries “in which entrepreneurial publishers...[and] entrepreneurial writers...played out their shared conviction that the “individual [is] essentially the proprietor of his own person or capacities -- and thus of whatever can be made of them.”

Professor Jaszi has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” And he noted with disapproval:

“The first Act of this preeminent ‘authors' rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo's vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist's private insecurities about his own ‘originality.’”*

Note the scare quotes around “authors rights” and “originality.” The Professor appears to subscribe to the postmodern cliché that all art is a form of collage and that authorship and originality are merely covers for one writers ”vigor” or another’s “manic energy” and “insecurities.”

Maybe so, but a working author might guess that Dickens and Hugo were merely protecting their copyrights because that’s how they made a living.

Citing the authority of postmodern critics, Professor Jaszi laments that their “critique of authorship” “has gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into ‘deconstructing’ other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, overdetermined power of the author construct -- with their immediate significance for law -- have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” –Page 12 The Construction of Authorship*

Or to put it in plain English: why hasn’t Congress harkened to some collectivist literary critics and written their debatable theories into US copyright law?

With the Orphan Works bill, maybe they will.

Yet if this were one’s goal – to impose a collectivist agenda on US copyright law, wouldn’t forthrightness be the better policy? Shouldn’t you say “we want to change the laws governing a citizen’s ownership of his or her intellectual property” – then present the case frankly and debate it publicly and transparently?

Wouldn’t that serve the public interest better than concealing the agenda behind a claim that you’re only amending the law to “find homes for the poor orphan works” or making the world safe for folks to duplicate pictures of grandma?

Tomorrow: How many letters did it take to trigger the Orphan Works Bill? Would you believe 215?

*Quotes from the Introduction to The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee, Peter Jaszi, Editors, Duke University Press, 1994
http://books.google.com/books?id=dpRKltgJYYwC

Orphan Works: A Public Knowledge Postmortem

"Orphan works relief was vigorously opposed by visual artists... And while we have thought some of their concerns misguided, they did a fine job of organizing and getting their voices heard."

That was the rueful conclusion Monday from the President of Public Knowledge. She was conducting a postmortem on her blog to explain why their last minute efforts to pass the Orphan Works Act failed last week.

Public Knowledge is one of the key special interest groups driving orphan works legislation. And while interested parties around the country were being told all week that the bill was dead, she now confirms that there was a secret last minute push to pass it:

"[W]ith the country's financial crisis raging [she writes] and Congress in the middle of deliberations over a bill to rescue our financial institutions, there was still an opportunity to get a bill done. But how? The best option was to get either House Courts, Internet and Intellectual Property Subcommittee Chairman Berman or House Judiciary Committee Chairman Conyers to take the Senate bill that passed and put it on the 'suspension calendar,' which is the place largely non-controversial legislation gets put so that it will get passed quickly. There can be no amendments to bills placed on the suspension calendar, but it needs a 2/3 majority to pass (italics added).

"On Saturday, September 27," she continues, she and others "were on the phone imploring the members to move the bill...":

"The negotiations went on for hours and hours on Thursday into Friday, but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with [sic] on language with the House staff. Late Friday afternoon, the House voted in favor of a bailout bill and everybody went home. Time had run out." http://www.publicknowledge.org/node/1783

Public Knowledge has a "Six Point Program" to undo existing copyright law. "Orphan Works Reform" is Number 5. http://www.publicknowledge.org/node/1245 And while they're "disappointed" they weren't able to pass the bill this session, she advises supporters to "focus on what positive things came out of the process, so [they] can move forward quickly next year."


PK says artists have learned their lesson

In her opinion, one of the "positive things" to "come out of the process" is that:

"[V]isual artists, graphic designers and textile manufacturers who opposed orphan works relief now understand that they must change their business models." (Italics added.)

Artists "must change their business models"? Is that a sound we hear from inside the Trojan Horse?

Whatever happened to the claim that this bill was only a minor tweak to copyright law - to let libraries and museums digitize their collections of old work - or let families duplicate photos of grandma?

That was the argument lawmakers heard last spring, when the bill was rolled out suddenly, scripted for quick and easy passage. But now that the anti-copyright lobby has had to fight for it, they've dropped their guard. Now it's time to openly lecture artists that the world is changing and we'd better get used to registering our work with privately owned "databases" -- at least if we want to ensure that our works won't become orphaned.

But of course that was the agenda all along.


PK says not all artists are misguided

PK'sPresident wants Congress to know that not all artists are "misguided" - only those that oppose the bill. Currently, 80 professional groups do.

By contrast, she cites the Graphic Artists Guild as an example of artists who have learned their lesson. She praises GAG as "enlightened," because GAG supported the House version of the bill. She quotes a recent letter from GAG's President in which he admonished artists to "get real about this Orphan Works scare":

"I don't think Orphan Works is going to have a dramatic influence on how we do business [he wrote], but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we've expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we'd be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us."

We replied to the GAG letter weeks ago, when it was first circulated to artists. We obviously disagree. Indeed, we'd point out that what the community of artists is doing by opposing this bill is "protecting our own creations":

• The Orphan works bill would have a dramatic affect on business, because it would let people infringe our work without our knowledge, consent or payment.

• Most people who succeed in our field do "treat art as a business."

• People who are bad at business can't be used as proof that successful people must change their business models.

• You can't justify exposing an artists' property to theft by telling him he didn't write enough "letters to low-paying publishers."

• What artists do or don't "give away" on their own doesn't justify government's taking anything from them.

• It's counter-intuitive to tell small business owners we should accept a bill that's bad for business to prove that we've "awakened to the importance of tending to business."

• If we don't fight to keep the work we create, that would be the ultimate failure to tend to business.

A full response to the entire GAG letter is here: http://ipaorphanworks.blogspot.com/2008/09/orphan-works-why-bet-against-ourselves.html


The Orphan Works Act was based on a premise and a conclusion:

• The premise is that the public is being harmed because it doesn't have enough contact information to locate copyright owners.

• The conclusion is that artists must change their business models.

• What's lacking is any evidence in between.

The Orphan Works Act was based on recommendations by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not study the business models of artists who are alive, working and managing their copyrights. That means there can be no meaningful conclusions drawn from their study to dictate that such artists must change their business models.

From the beginning, artists have said we'd support a true orphan works bill. We've submitted precise amendments that would make one out of this bill. http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html Our amendments have never been considered.

Instead, as PK's President noted in her postmortem, their last minute strategy for passing the bill would have "put it on the 'suspension calendar.'" And "[t]here can be no amendments to bills placed on the suspension calendar..."

The anti-copyright lobby is well funded. They have powerful backers. They've warned us they'll be back next year.

We should take them at their word.

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

Orphan Works: The Big Internet Factor

On Thursday October 2, each member of the House of Representatives received the following letter:

October 2, 2008

Dear [Member of Congress],

As lawmakers struggled Friday to prop up private financial institutions that are “too big to fail,” the Senate quietly passed a bill that would allow a few giant internet firms to swell by absorbing copyright titles from independent creators, small businesses and average citizens around the world. As Market Watch reported Sept. 29: While members of Congress were focused on an economic rescue package, “internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory.”

We are writing to express our grave concerns about this. The Senate Orphan Works Act (S 2913) was passed Friday by the controversial practice of “hotlining” and referred to the House Judiciary Committee. We’ve been warned that the House may abandon its own bill (HR 5889) and adopt the Senate’s. If that happens, this legislation will negatively affect artists, writers, photographers, songwriters, musicians, performers, craft and folk artists, Native American artists, in fact, creators of all disciplines, professional and amateur, both in the U. S. and worldwide.

We believe these bills mask an effort by Big Internet companies to profit by undermining existing global intellectual property rights protections. These protections currently allow small creators to control the use of their art, photographs, writings, videos or music. The proposed legislation would undermine these protections in two ways. First, it would remove any effective penalties for copyright infringement wherever a user is unable to locate an author by a vaguely defined “qualifying search.” And second, it would “pressure” copyright holders to subsidize the start-up of privately owned commercial databases by exposing to potential infringement the work of any copyright owner who does not provide these databases with access to his commercial inventory, metadata and licensing information. Since no rational business owner would voluntarily turn over his business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners.

Undermining Small Businesses
The lobbying efforts to promote this legislation pit small entrepreneurs and artists of all kinds against some of the largest and most well-financed Internet powerhouses in America. One in particular will serve to document our concerns. Google, one of the largest backers of the legislation, has already stated their intent to profit from the works the bill will orphan. In 2005, three years before the current legislation, Google told the U.S. Copyright Office “[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range....”[1 Footnote]

In March 2005, Google’s top lobbyists submitted comments to the U.S. Copyright Office’s Orphan Works Study. In it, they argued: a.) Orphan Works “represent an untapped wealth of information that should be made accessible to the public”[2 Footnote] (presumably through Google’s search engine and advertising programs); and b.) owners of orphan works could more effectively monetize their creations if they “enrolled in [Google’s] publisher program, and could receive money from advertising revenue.”

Google also commented that the Copyright Office’s current registration database, which covers works registered after 1978, does not provide contact information for locating copyright holders, adding: these records are not “readily queried through automated means.” Google sees this as a problem: it means a user looking for a copyright holder would have to conduct a routine search of records using traditional sources of information -- sources Google does not own or control. Such diligent traditional searches do not conform to the rapid automated searches that fit Google’s “one million works” goal.

In making this argument however, Google’s lobbyists presented the case as if certain procedures were not already in place at the Copyright Office. Google proposed that orphan works data “be accessible and searchable by automated means as well as through a web browser or other methods.” But in fact this system already exists for works registered after 1978 (see Copyright Office Circular 22). And Google suggested that any work designated as an orphan by one infringer should be free for others to infringe in good faith, without risk of liability.

Based on these comments and on Google’s subsequent lobbying efforts, it is obvious that Google believes passage of the current orphan works legislation would allow it to harvest millions of copyrighted works free from potential liability. Indeed it would even allow Google or similar companies to capture orphaned copies of any individual’s works, alter the works slightly to create “derivatives,” then copyright the derivatives as their own intellectual property. These companies could then add that work to their massive commercial databases and profit by licensing it to third parties - or by providing free access to the public in return for advertising revenues. In effect, we fear this bill would force creators to subsidize potential competitors by supplying them with the content they would need to compete.

No Economic Impact Analysis
It’s troubling to us in the creative community that anyone would seek to impose these measures on the $187 billion licensing industry. But equally disturbing is the surprising $3 million contribution Google made to the Library of Congress for its “World Digital Library” project in November 2005. This donation was made just as the Copyright Office was concluding its Orphan Works Study and preparing its final report to Congress. [3 Footnote]

As you know, the Library of Congress oversees Copyright Office activities. And while the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest and perhaps only private sector contributor.

Then in early 2006, only a few months after Google’s donation, the Copyright Office submitted its Report on Orphan Works. In it, they recommended changes to copyright law that would dramatically affect commercial markets. Yet the Copyright Office had studied the specific subject of orphaned work. They did not solicit, nor did they receive, relevant information about the workings of commercial markets. This fact was summarized in a joint position paper published July 15, 2008 by the Association of Independent Music Publishers & the 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 did not 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 of 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.” [4 Footnote]

Despite this lack of information about commercial markets, the Copyright Office asserted they had found a widespread “market failure” and recommended sweeping changes to copyright law. The changes included many that Google had asked for.

Google’s special interest in this issue should not be overlooked. In March 2007, the company filed a mandatory 10-Q Filing with the Securities and Exchange Commission in which they acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business [italics added].”[5 Footnote]

Google’s involvement surfaced again March 13, 2008, when the Register of Copyrights, Marybeth Peters, testified before the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. She strongly endorsed the current legislation and recommended that private technology companies play a role in ensuring “best practices” in the creation of orphan works registries. She acknowledged a December 2007 technology briefing for Congressional staffers hosted by the Copyright Office, which Google attended to showcase tools and services to “help alleviate the orphan works problem.”[6 Footnote]

We find it deeply disturbing that the U.S. Copyright Office has so clearly and unambiguously advocated legislation that will privilege large commercial interests such as Google at the expense of creators and the countless small businesses that serve, and are dependent on the creative community. We find this even more troubling in light of Google’s substantial contribution to the Library of Congress at a time when the Copyright Office was preparing its Orphan Works recommendations -- and at a time when Google had acknowledged to the SEC that its financial well-being is dependent on a business model that has already engendered multiple lawsuits for copyright infringement totaling billions of dollars.

Google and other large database, advertising and search engine companies clearly have a major financial stake in the weakening of copyright law through new legislation. The Orphan Works Acts, if enacted in either of its current forms, would solve the problem that has vexed so many start-up internet companies: how to make money by giving away free content. By opening the door to potentially billions of “permitted” infringements of protected copyrights, this legislation would allow Big Internet to create an entirely new business model, by licensing content they don’t have to pay for — through the digitizing, archiving and monetizing of the intellectual property of ordinary citizens.

A Bill Too Far
We believe the proposed Orphan Works lelgislation, as written, go far beyond current concepts of Fair Use. As Chairman Berman of the House Subcommittee on the Courts, the Internet and Intellectual Property acknowledged on March 13 2008, the term orphan works, as applied to this legislation, is actually “a misnomer.” In fact, these bills are not designed to deal with the use of true orphan works by museums, libraries and archives. Instead they seek to grant any potential user the right to use any work by any creator for any purpose, so long as the user finds it sufficiently hard to locate the user – a standard so broad it would re-define the meaning of copyright itself. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder. The consequences will be far-reaching, long lasting, perhaps irreversible and will drastically affect what it means to create and own intellectual property. In addition, it could disrupt trade relations with rights holders in Europe, who are fearfully protective of their works’ copyrights.

On August 8, 2008, The Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. This was the first effort to assess the economic impact of this legislation on the creative community. [7 Footnote] Panelists agreed that it would drastically change copyright law, and stressed that the high cost of compliance would be a prohibitive burden for artists to bear, thus exposing valuable inventories to commercial infringement. All agreed that the bills would have a profoundly negative impact on creators’ rights and markets.

We also note that on August 30, 2008 leading copyright scholar Jane Ginsburg of the Columbia Law School published Recent Developments in US Copyright Law: Part I – “Orphan” Works.
<8> In this scholarly article, Professor Ginsburg raises several critical questions about the legislation, noting that certain provisions appear to violate Article 10.1 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She states that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works; and she adds that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.”

As small business owners, sole proprietorships and individual creators, we lack the promotional and lobbying muscle of Big Internet companies. But as we spend our own time and money to call attention to the defects of the current legislation, we stress that we would support a bill that precisely defines the category of true orphan works and sets a proper bar for making the requisite showing of due diligence by potential users. But we believe the broader interests of society are served best, when those exceptions are limited to “certain special cases,” as defined both by Article 10.1 of Berne and Article 13 of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). As Professor Ginsburg notes in her article: “The ‘progress of knowledge’ to which US copyright aspires is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.”

In the interests of continuing conditions conducive to creativity in the US – and on behalf of millions of small creators, small businesses and average citizens, we respectfully urge members of the House not to adopt the Orphan Works Act of 2008 (H.R. 5889), nor to adopt the Senate version S2913.

Sincerely,
Brad Holland, Artist
Co-Founder, Illustrators' Partnership of America

Cynthia Turner, Medical Illustrator
Director, Illustrators' Partnership of America

Constance Evans, Artist
Executive Director
Advertising Photographers of America

Gerald Colby, Writer
President, National Writers Union

Kathleen Bitetti, Artist
Executive Director, Artists Foundation

Don Schaefer, Photographer
Co-Administrator, pro-imaging.org

Nick Anderson, Editorial Cartoonist
The Houston Chronicle
Immediate Past President
The Association of American Editorial Cartoonists

Jeff Keane, Cartoonist
President
The National Cartoonists Society

Ted Rall, Cartoonist
President
The Association of American Editorial Cartoonists

[1] http://www.copyright.gov/orphan/transcript/0726LOC.PDF

[2] http://www.copyright.gov/orphan/comments/OW0681-Google.pdf

[3] http://www.loc.gov/today/pr/2005/05-250.html

[4] http://www.brandaideblog.com/pdf/Position_Statement.pdf

[5] http://investor.google.com/documents/20070331_10-Q.html

[6] http://www.copyright.gov/docs/regstat031308.html

[7] http://videos.cmitnyc.com/asip.html

[8] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361

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