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: “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

Orphan Works Opposition: Plan B

SEPT 27 Yesterday, in a cynical move, the sponsors of the Senate Orphan Works Act passed their controversial bill by a controversial practice known as hotlining.

With lawmakers scrambling to raise 700 billion dollars to bail out businesses that are “too big to fail,” the Senate passed a bill that would force small copyright holders to subsidize big internet interests such as Google, which has already said it plans to use millions of the images this bill will orphan.

With the meltdown on Wall Street, this is no time for Congress to concentrate our nation’s copyright wealth in the hands of a few privately owned corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel creators to risk their own intellectual property to supply content to these corporate business models. That means it would be our assets at risk in the event of their failure or mismanagement.

As David Rhodes, President of the School of Visual Arts has said, the Orphan Works bill would socialize the expense of copyright protection while privatizing the profit of creative endeavors. Copyright owners neither want nor need this legislation. It will do great harm to small businesses. We already have a banking crisis. Congress should not lay the groundwork for a copyright crisis.

– Brad Holland and Cynthia Turner, for the Illustrators’ Partnership

NOW FOR PLAN B

We MUST try to stop the House Judiciary Committee from folding their bill (HR5889) and adopting the Senate version.

PLEASE EMAIL CONGRESS TODAY.
If you’ve done it before, do it again!

It takes only a minute to use our new special letter.
Click on the link below, enter your zip code, and take the next steps.
Thanks to all of you who heeded the call to action yesterday.

http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Over 70 organizations oppose this bill, representing over half a million creators.
Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses. The Illustrators Partnership Capwiz site is open to professional creators and any member of the image-making public.

The Orphan Works Act: Responses to the House Judiciary Committee

The following statements about the Orphan Works Act were sent from the House Judiciary Committee to a Congressman. The Congressman asked for responses from visual artists. The language in the statements is quoted verbatim from the Judiciary Committee document.

Judiciary Committee: An infringement today will continue to be one after enactment of orphan works legislation. Critics of orphan works measures frequently seem to miss this point, often wrongly suggesting that an orphan works law will legitimize infringing acts.

Illustrators' Partnership: No one is missing the point. Under this bill, infringements may continue to be infringements, but millions will be infringements in name only. That’s because these bills would remove any effective remedy for the infringement whenever the infringer can successfully assert an orphan works defense. The defense need not be valid, only successful. That means we’ll see millions of so-called “good faith” infringements, among which bad actors will be able to hide like needles in a haystack.

What bad actor, if caught, will have a Perry Mason Moment and admit he’s guilty of willful infringement? Not if he can assert an orphan works defense and dare the artist to sue. And under this bill, any artist who sues will have to be sure of winning, because without the possibility of statutory damages and attorneys’ fees, it’ll be too expensive to lose. Since lawyers will be unwilling to accept such cases on contingency (because there’s no guarantee the infringer will have to pay), this law will effectively deprive rights holders of legal counsel, expert witnesses, court costs, etc. - the very tools they’d need to legally prove bad faith.

Judiciary Committee: Orphan works proposals are tailored to address the remedies that will be available under certain prescribed circumstances. In an instance where a good faith user has performed and documented a qualifying search and satisfied each of the other statutory conditions (i.e. filed a notice of use with the Copyright Office, placed an orphan notice on their use, etc.) the user will ordinarily be subject to the payment of reasonable compensation to the owner of the orphaned work if that owner is later identified.

Illustrators' Partnership: Note the key phrase: “if that owner is later identified.” Infringements can occur anytime, anywhere in the world, so most will never be discovered by rights holders. This undermines the case for “reasonable compensation,” because compensation can’t be reasonable if it’s never paid.

Judiciary Committee: Reasonable compensation is intended to reflect the amount a willing buyer and willing seller would have negotiated for a licensed use prior to the infringement. Contrary to popular criticism, [reasonable compensation] is not an amount that must be accepted by an owner that is dictated by the user after infringement.

Illustrators' Partnership: Several points:

• Since orphan works transactions will occur only after infringement, the copyright owner will have no leverage to bargain for more than the infringer is willing or able to pay.
• Unless the owner accepts the infringer’s offer, he’ll have to go to federal court.
• If the court accepts the infringer’s claim that the infringer made a reasonably diligent effort to find the owner,
• Then it becomes the owner’s burden to prove the market value of his work; but
• To prove this, the owner will have to prepare a legal case with expert witnesses;
• These are expenses the owner will not be able to recover from the infringer.
• Filing fees, legal expenses and court costs could well exceed the so-called “reasonable fee.”
• And now the Catch 22:
• There’d be no limit to the amount of damages and legal fees the infringer could get from the owner in a countersuit.

Judiciary Committee: [Reasonable compensation] is intended to approximate the results of a market-place negotiation. In many cases, reasonable compensation will approximate the amount a copyright owner would have received as actual damages. The amount may also approximate the amount of statutory damages that would have been awarded by a court.

Illustrators' Partnership: Regardless of whatever the bill is “intended” to do, these intentions are unlikely to translate so cleanly into the rough and tumble of the marketplace. In real life, it’s safe to assume that serial infringers of orphan works will establish low “reasonable” fees, which will effectively become the legal standard for “reasonable compensation” in lawsuits regarding orphan work uses. Artists might never agree to these low fees if contacted “prior to infringement,” but they’d have no choice but to accept them if “offered” after the fact.

Judiciary Committee: The House bill requires that the user of an orphan work engaged in a qualified search to identify the owner prior to and proximate to the use; that the search was properly documented; that a notice of use was filed with the Copyright Office; that detailed best practices to be promulgated by the Copyright Office for conducting such a search were followed; or that an orphan works symbol was placed on the infringing use.

Illustrators' Partnership: These provisions are of no use to a rights holder unless he goes to court. And as business people, we make our livings from voluntary business transactions, not expensive lawsuits with all the uncertainty that comes with them.

In fact, uncertainty in commercial markets will be this bill’s chief legacy. The language of the drafts defines an infringer’s “qualifying search” as one that is reasonably diligent. But reasonable diligence is never defined. The Copyright Office has said that these ambiguous terms will be left to the courts to define on a case-by-case basis. But since any work might become an orphan in one legal proceeding and not in another, it’ll take a decade of expensive lawsuits and appeals to learn how the law will ultimately define these vague terms. Since artists are unlikely to have the resources for litigation, infringers may generally win by default. Why should copyright owners have to go to court on a regular basis to contest the diligence of an infringer’s search or to prove the value of their own property for uses they never authorized?

Judiciary Committee: As an explicit measure to discourage malicious actors who might seek to exploit the orphan works limitation in furtherance of commercial piracy, the House bill was expressly amended to prohibit the limitation from being used in connection with the production of useful articles (i.e. coffee mugs, wallpaper, rugs, clothing, etc.). So the [use of art on a] coffee mug [for] example is expressly prohibited by the House bill even in a circumstance where the user theoretically sought to meet the aforementioned statutory pre-conditions.

Illustrators' Partnership: Commercial piracy is not limited to rip-offs of art on “useful articles.” If the bill’s drafters have exempted designs for coffee mugs, wallpaper, rugs and clothing, then they’ve conceded that the bill will lead to the piracy of visual art. Having acknowledged that, why would they permit other forms of art to be pirated? Are designs on coffee mugs more deserving of protection than medical illustrations, editorial cartoons, news photos, book illustrations, advertising art, fine art?

Judiciary Committee: There is no present requirement for an author to register their work or place a copyright notice on it to qualify for the protection of U.S. copyright law. It is false that registration will become mandatory after the enactment of orphan works legislation. There is nothing in either the House or Senate versions of the bills that will require copyright owners to register their works or place copyright notices on them to enjoy copyright protection.

Illustrators' Partnership: That’s because Congress cannot ”require” artists to register their work without openly violating the Berne Convention, NAFTA, TRIPS, WIPO and WTO treaties. Yet in reality, the effect of this legislation will be the same as compulsory registration: artists who don’t register their work will find it vulnerable to orphan infringement. Or to put it another way: the bill would not impose registration on rights holders; it will just endanger the work of those who don’t impose registration on themselves.

Judiciary Committee: As previously noted, a "user" of an orphan work will be required by the House bill to, inter alia, file a "notice of use" with the Copyright Office prior to use and required to place an orphan works symbol, which will be prescribed by the Copyright Office, on their work.

Illustrators' Partnership: As currently written, the “notice of use” is a dark archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless:

• you discover you’ve been infringed;
• you sue the infringer in federal court;
• the infringer asserts an Orphan Works defense.
• Only then can you file a request to see if your work is in the archive.
• In other words, the notice of use is of no probative value to the rights holder at all, unless by luck, he finds that he’s been infringed and has to go to court.

As for the orphan works symbol to be “prescribed by the Copyright Office” and placed on all so-called orphaned work: it will act as a “come-and-get-it notice,” signaling to new infringers that a copyrighted work has already been orphaned by previous infringers and is therefore free for further exploitation.

Judiciary Committee: Orphan Works critics claim that copyright protection will no longer exist at the moment of creation under an orphan works structure, that new requirements will be imposed. No new statutory requirements are imposed on copyright owners to establish protection or ownership nor is the manner for determining ownership altered by the House bill. (Italics added)

Illustrators' Partnership: Note the modifier “statutory.” To repeat, we understand that the Copyright Office cannot propose statutory registration requirements. That would explicitly violate international copyright law and copyright-related treaties. Instead, the Copyright Office has proposed that Congress “limit” the remedies for Infringement: this pulls the teeth out of copyright law because:

• Remedies for infringement are the only means rights holders have to protect their work from thieves.
• There is no Copyright Bureau of Investigation; no Copyright Police Force.
• Rights holders have to police their own copyrights, and
• Penalties for infringement are the only weapon the law gives us.
• Remove those penalties and you remove uncertainty in the minds of bad actors.
• Under current law, if an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it may not be registered.
• He may guess correctly but – he can’t be sure.
• This uncertainty is the key safeguard against infringement, because
• If the bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
• This is a powerful incentive for a thief not to risk stealing work. So
• In the real world, uncertainty in the mind of a bad actor is the only weapon we have to protect our copyrights.
• Remove that uncertainty and you remove the only realistic safeguard the law provides.

Judiciary Committee: [Critics charge that c]opyright owners will be statutorily required to "register" their works with private databases that have yet to be created to protect their exclusive rights in an orphan works environment. There is no such requirement in the House bill.

Illustrators' Partnership: For the third time: we acknowledge that international agreements with our foreign trading partners prohibit Congress from “statutorily” requiring registration. But the proposal for commercial registries (now referred to in the bill as “databases”) has been there from the beginning. See page 106 of the Copyright Office’s 2006 Report on Orphan Works:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf

And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting

The fact that this law would orphan unregistered work presents copyright owners with a Hobson’s Choice: either digitize your life’s work and metadata at your own expense and entrust it to privately-owned commercial “databases” or - see it exposed to potential infringement. But why should any rational business person voluntarily give access to his commercial inventory and client contact information to outside business interests?

Judiciary Committee: One of the ends of orphan works legislation is to facilitate the ability of copyright owners to receive greater compensation for the use of their works.

Illustrators' Partnership: If this were true, we would not be spending our own time and money opposing this bill. But in fact over 60 creators organizations do oppose it: http://capwiz.com/illustratorspartnership/home/ These groups represent hundreds of thousands of illustrators, photographers, fine artists, writers, songwriters, performers and countless small businesses that serve and are dependent on the creative community.

Judiciary Committee: To facilitate [licensing] transactions, it is desirable and necessary for prospective users to have the means of identifying the owner of the work as well as the ability to contact them to seek to negotiate a license.

Illustrators' Partnership: Absolutely true, but it’s incorrect to assume this bill is necessary for that purpose. As successful business people, we don’t need government to legislate a quasi-compulsory license to replace our voluntary business transactions. We know how to make ourselves available to clients and we know how to negotiate licenses.

According to the Licensing Industry Merchandising Association, licensing is now a $187 billion dollar industry. Creators are responsible for a robust sector of the U.S. economy. We employ and support agents, directories, source books, web sites, archives, internet portals and other advertising venues to make ourselves available to users. Not only we, but all these hundreds of thousands of small businesses will be harmed, not helped, by a bill that removes effective protections for the work we create and trade in.

Judiciary Committee: The more owners voluntarily contribute to the creation of a meaningful and accessible public record of their works, which includes licensing information, the better for all parties. This includes the owner, potential users who are searching for them and the general public who will benefit from new uses of creative works.

Illustrators' Partnership: Again, why should any business owner be required to give his licensing information to outside business interests? Consider the potential for unauthorized use or abuse! Moreover, many artists, such medical illustrators, frequently enter into confidentially agreements with their clients, agreeing to protect their clients’ trade secrets, patient or victim information and medical litigation materials from exploitation. These agreements would preclude them from displaying their work and client information in a public record.

Judiciary Committee: While the law will not, in any way, require owners to register their works or copyright information with any private entity, the fact is that the easier it is for an owner to be identified and located, the less likely it is that a user will be able to prevail in the assertion of a claim that the work was an orphan and that the owner could not be identified and/or located.

Illustrators' Partnership: For the fourth time: to say that the law will not “require” registration is misleading. The problem with “voluntary” registries is that you can’t find a picture in a registry if it’s not there. That means that any picture – published or unpublished, professional or personal – that hasn’t been registered in one of these commercial databases could be declared an orphan for legal purposes, even if the artist is alive, easily accessible to clients and prudently managing his copyrights.

Registries would merely benefit two classes: a.) infringers – who could use a non-productive search to declare unfound works as orphans; and b.) owners of registries, who could cut themselves in on the multi-billion dollar licensing industry, currently functioning well without them.

Judiciary Committee: [But] if the owner can be easily found, then the orphan works limitation will in no way restrict the range of damages that are available to them in an instance of infringement. (Italics added.)

Illustrators' Partnership: Several points:

• The presumption that owners of contemporary work can’t be “easily found” is false. An owner may be hard to find if he’s died or abandoned his copyrights – that would be a true orphaned work. But this bill re-defines an orphan as any work by any author that any potential user ever finds hard to find. Sooner or later, that could be every work by every author. This bill will define millions of works as orphans on the premise that some may be.

• Why must an owner be “easily found” by any parties other than those whom the owner chooses to do business with? Is there a national emergency in visual images that requires legislation to regulate this sector of the free market?

• There is no need for government intervention here. We are professionals. We’re alive, working and managing our copyrights. We can be located. Our clients locate us all the time. But that doesn’t mean that anyone anywhere can find us. And frankly, why should it? What if 1000 people can find me but one person can’t? Why should that person get a free pass to use my intellectual property? Won’t that give infringers an incentive not to find rights holders? Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the taking of private property.

• The argument that artists can always resolve orphan works disputes in court is a measure of the bill’s most serious defect: Any law that drives business decisions into the courts is bad for business and bad for the courts.

• We believe our work benefits the public by being published through the channels where we wish to publish it. The current copyright law works by giving us the incentive to keep doing this. But authors’ rights are exclusive. Public interest cannot compel any creator to publish his work. So by what right of eminent domain can government give members of the public the right to publish his work for him? We’re only asking Congress to protect this basic property right.

Judiciary Committee: [Critics charge that] orphan works bill will change the laws that relate to the group registration of photographs and the registration of other types of collected works. Among other things, [they say] the expense to register will increase exponentially since works will all need to be registered individually. Nothing in the bills requires or supports this allegation.

It is true that there are already intrinsic and systematic limitations on the ability to search for individual works that are registered as part of a "group" or "collection." Today, there is no meaningful public record of individual works that an owner chooses to register in this fashion. This situation results, in part, from the persistent desire of copyright owners to limit the expense of registration. But the decision to register works individually or collectively is today an independent decision that is exercised by owners who presumably conduct a cost-benefit analysis of the value of individual registration. Nothing in the House bill mandates changes here nor fundamentally alters this cost-benefit analysis calculation. That said, the Congress may, independent of whether or not an orphan works bill is enacted, want to consider potential improvements in the copyright registration process in an oversight or legislative capacity but the timing for doing so as well as any decision to do so is speculative.

Illustrators' Partnership: At the recent SBA Roundtable (see below), one photographer said he had already registered over half a million images with the Copyright Office. Yet under this bill, he’d have to “voluntarily” re-register every single one of those images again, this time with privately-owned databases. How many databases? Who knows? And when a database fails, would he have to re-register his work again and again?

Under this bill, every rights holder will face this issue because:

• The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works;
• The cost and time-consumption to individual artists of registering tens of thousands (or with photographers, hundreds of thousands) of visual works, at even a low fee, would be prohibitive; therefore:
• Under this law, every artist would see thousands of his creations potentially orphaned from the moment of creation.
• No registry would be meaningful until billions of pre-existing works (both published and unpublished) from artists (both living and dead) have been digitized, color corrected, keyworded and registered; but
• Few, if any, living artists could afford the time and expense of digitizing and registering a backlog of tens (or hundreds) of thousands of their own works; therefore:
• Countless working artists would find countless existing works vulnerable to infringement from the moment this bill takes effect.

Judiciary Committee: Much of the confusion about the potential impact of orphan works legislation appears to derive from a misperception about the eligibility and availability of statutory damages to owners in infringement actions. Statutory damages are not ordinarily available to copyright owners. They are available to only those copyright owners who have registered the particular work that is infringed with the Copyright Office prior to the infringement or within three months of publication. When available, statutory damage awards generally range from $750 to $30,000. Where the infringement is proven by the owner to have been willful, the court, in its discretion, may increase the statutory damage award up to $150,000.

Illustrators' Partnership: The issue of statutory damages is a real one and we’ve already addressed it. But debating it apart from its impact on business misses the point. Artists rarely go to court and would prefer never to have to. We oppose the Orphan Works Act for fundamental reasons: it’s a bill too far!

In drafting this legislation, the Subcommittee has relied on the 2006 Report on Orphan Works issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. Their study did not inquire about the workings of commercial markets and there is no evidence in their report that a market failure in commercial markets exists. 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.” http://www.brandaideblog.com/pdf/Position_Statement.pdf

Because the Copyright Office never presented evidence to justify their proposed changes to commercial markets, hundreds of thousands of creators respectfully ask that this bill be withheld until it can be re-written as a true orphan works bill. Three groups: The Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments that would do that. These amendments can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

Brad Holland
Illustrators’ Partnership
9.1.08

Orphan Works: Why Bet Against Ourselves?

Several artists have asked me to respond to a recent letter they received from John Schmelzer, President of the Graphic Artists Guild. In it, he gave his reasons for GAG’s endorsement of the House version of the Orphan Works Bill. GAG’s statements are quoted verbatim and in full. My responses follow.
– Brad Holland, Sept. 14, 2008

GAG: This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law. But that’s not the reality.

Response: Artists have no way of knowing what GAG considers “the best possible outcome for this legislation” because their lobbyist has asserted attorney client privilege, saying she can’t disclose “sensitive stuff.” However, some facts are on the public record:

• In 2005, 42 groups signed the Orphan Works opposition paper submitted by the Illustrators’ Partnership to the Copyright Office.
• GAG was not one of those 42 groups.
• GAG filed their own paper, endorsing the bill’s “legislative blueprint.”
• According to mandatory disclosures filed with Congress, GAG has paid their lobbyist $140,000 to support the House version of the bill:
• http://www.opensecrets.org/lobby/clientsum.php?year=2007&lname=Graphic+Artists+Guild
• http://www.opensecrets.org/lobby/clientsum.php?lname=Graphic+Artists+Guild&year=2008

GAG: The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.

Response: Since when does “getting real” mean artists have to sit still for being robbed? And since when does treating art as a business mean making excuses for theft? Do you have to be “put out of business” before you react to harmful legislation? Over 60 groups agree that this bill violates international copyright law, undermines artists’ rights and devalues their work. If that’s “a scare,” it’s a real one.


GAG: Orphan Works will not go away, because too many stakeholders are behind it.

Response: Orphan Works legislation doesn’t need to “go away.” It needs to be fixed. Make it a real orphan works bill. As for the special interests behind this one, they’re not “stakeholders.” They’re opportunists. They want to cut themselves in on our markets, and they’ve drafted a bill that will let them. It’ll be the stockhouse story all over again – only this time, you’ll be penalized if you don’t give your work to these “databases.” Who are the real stakeholders in this fight? We are – and we shouldn’t succumb to Stockholm Syndrome and embrace the logic of the bill’s backers.


GAG: Delaying passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version.

Response: No, opposing it in a principled manner and explaining to lawmakers why it’s bad gives us a chance to get a better version in the next Congress. Telling you to take a bad bill because the next one might be worse is like telling you to cop a plea to a crime when you know you’re not guilty.


GAG: By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues.

Response: “Negotiating realistically” doesn’t mean capitulation. It means proposing serious amendments, as IPA did July 11: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html. As for having a “seat at the table,” what good does it do you if you don’t use it? If you give up the goal of protecting your rights to become part of the process, there’s a good chance you’ve become part of the problem.


GAG: For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle over Orphan Works.

Response: If the rights to your creative work aren’t worth fighting for, what is? Protecting your rights is always a “gamble.” But why bet against ourselves? As for that “position of respect” that “government circles” allegedly show us, if this bill is an example of it, maybe we should aim for the respect of being treated as worthy opponents.


GAG: The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get.

Response: It’s true that this bill is now so convoluted you’ll need a lawyer to explain it to you. That’s a big change from the current law, which protects your work by making it your exclusive property. This bill would force you to take active steps - like registering your work with a commercial database - not to actually protect it (because the database won't protect it) – but merely to preserve your right to sue an infringer in federal court.


GAG: Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper, gift wrap, shower curtains, etc., from being covered under the legislation.

Response: It’s not clear why artists, writers, photographers, songwriters and others should be grateful that “wall paper, gift wraps, shower curtains, etc.” have been exempted. Is art on coffee mugs more valuable than medical illustrations, news photos, political cartoons, book illustrations?

The textile industry asked for an exemption only for themselves. They condemned the bill, saying it would do great damage. But as soon as they got the exemption, they endorsed it! It’s easy to see why they wanted to be cut out – it’s a lousy bill. But once they got out, why try to inflict the damage on others? Was there a quid-pro-quo? Did Congress force them to endorse the bill in return for exempting them? And if you’re the party that brokered a deal like that, why would you want to take credit for it? If this bill is so bad that manufacturers have to be spared, how does anyone justify telling artists to just “get real” and take it as an object lesson?


GAG: The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work.

Response: First, let’s translate “Notice of Use” into plain English. It means “Notice of Intent to Infringe.” An infringer would file his name and a description of the so-called orphan with an archive. As currently written, this would be a Dark Archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless a.) you discover you’ve been infringed; b.) you pay a filing fee and sue the infringer in federal court and c.) the infringer asserts an Orphan Works defense. Only then can you file a request to see if your work is in the Dark Archive. In other words, the Notice of Use is of no probative value to you at all, unless by sheer luck, you find out that you’ve been infringed and feel like risking a lawsuit. As for making the Notice public, what does that mean? It means you’d have to start each day by reading through hundreds of thousands of text descriptions of infringed works to see if any of the so-called orphans sound like pictures of yours.


GAG: The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.

Response: To repeat: over 60 creators organizations oppose BOTH bills: http://capwiz.com/illustratorspartnership/home/


GAG:I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues.

Response: If it’s not going to have “a dramatic influence on how we do business,” then why should it wake anyone up? In fact, if this bill passes, in the United States, your work can be used “legally” without your knowledge or consent. We think that’s pretty “dramatic” and it could have a dramatic effect on your business – whether you’ve “awakened” or not.


GAG: 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.

Response: We don’t think this is a time to lecture artists about business practices. No person or group can stop individuals from making poor business decisions. But letting government pass bad laws that will affect everyone – good business people and poor ones – is another matter. How many other businesses would sit back and surrender to a law that undermined their fundamental property rights? Dry cleaners or real estate brokers wouldn’t stand for it. Why should we? There’s no point in being an artists rights organization if you won’t defend artists’ rights.


GAG: Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last.

Response: We don’t see any way an “artists rights group” can build a “strong and vibrant industry” out of this bill, unless they plan to become one of the commercial databases this bill would set up. Orphan Works is the wedge issue of the anti-copyright lobby. If it’s successful, they’ll use it to widen the breach. Unless artists stand up for their own rights now – while they still have them – having a seat at the Orphan Works table won’t give anybody any clout for getting those rights back later.


GAG: We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.

Response: “Developing better business practices and standards” is always a good idea, but used in the context of this bill, the term is code for something else. The Orphan Works Act would set up gatekeepers for every industry. The gatekeepers would get to draw up the checklist of things infringers would have to check off before they infringed your work. Of course, the checklist will be presented to artists as an obstacle course for infringers – but in fact, it’ll be an obstacle course for YOU. Because it means you’ll have to take certain specific steps to preserve your right to sue infringers, and any clerical failure on your part, any oversight, will void your options.

There may be valid reasons for developing practices and standards for using the work of artists who have died or abandoned their copyrights; that would be a true orphaned work policy. But to warn working artists that they have to submit to new bureaucratic business practices so that potential infringers can freely use their unidentified works is a fundamental embrace of the anti-copyright agenda. That’s the truth and it should be understood as such.

- Responses by Brad Holland

Please feel free to forward these responses to any interested party.

Orphan Works Update September 10

With Congress back in session this week, Orphan Works rumors are back too.
According to some sources, deals have been made to pass the bills quickly. According to others, the bills have stalled for this session. Here's what we know, independent of conflicting sources:

SEPT 6 OpenCongress Lists "8 Controversial Bills That Congress Still May Pass"
In Congress Gossip, by Donny Shaw, the article notes that the Orphan Works Bills "have been called out by concerned citizens... but are in a good position to quickly become law" in the next several weeks. The author quotes artist Brad Holland and attorney Larry Lessig in opposition to the legislation, and ends with this quote from "an anonymous OpenCongress user":

"Isn't it funny how music is getting huge, sledgehammer like protection in HR 4279 and visual art is getting devalued and made worthless by this bill, HR 5889? Music must just be soo much more valuable. It's all about the corporate interests. Artists need to band together for our own protection and fight this dangerous bill. I'm an art student, and while I will never stop making art I'm worried I'll be unable to make a living at it. It's never been easy to be an artist without this kind of stuff coming along and making it impossible for us."

Read the full article here: http://www.opencongress.org/articles/view/636-8-Controversial-Bills-That-Congress-Still-May-Pass

SEPT 10 Authors Groups Submit Opposition Papers to Small Business Administration
The Illustrators' Partnership, Artists Rights Society and Advertising Photographers of America have submitted over 60 papers and articles to the Office of Advocacy of the US Small Business Administration. These written statements were filed on behalf of attorneys, illustrators, designers, fine artists, photographers, songwriters, musicians, writers, members of the art licensing community and other small business owners. All are opposed to the bill.

These papers are the written statements submitted in conjunction with the Orphan Works Roundtable, conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. The package will be distributed to lawmakers in both houses of Congress.

The webcast of the SBA Roundtable is available here: http://videos.cmitnyc.com/asip.html

AUGUST 30 Copyright Expert Releases Analysis of Orphan Works Bills
Leading copyright expert Jane C. Ginsburg of the Columbia Law School has published a major Orphan Works piece, the first of a two part article: Recent Developments in US Copyright Law: Part I - "Orphan" Works.

Professor Ginsburg's scholarly paper raises several critical questions about the current legislation. Among various points, she notes 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."

"The US proposals," she writes, "may run afoul of EU restrictions" for various reasons, and adds: "[t]here may also be Berne- compatibility problems regarding the inclusion of non-divulged [unpublished] works in the proposed orphan works regime...[T]he bills should exclude "orphan works" which have never been disclosed to the public, and whose authors are still living."

"The 'progress of knowledge' to which US copyright aspires," she writes, "is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity."

The full paper can be accessed here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361

SEPT 6 French Magazine Telerama Sounds Orphan Works Warning
Main basse sur les images "orphelines" by Olivier Pascal-Moussellard. In this article, initiated by artist Etienne Delessert, the popular French magazine notes that 60 organizations oppose the controversial US bill and warns that it threatens to harm international artists as well "if they don't wake up." In opposition to the bill, it quotes Brad Holland and Dr. Ted Feder, President of the Artists Rights Society, which represents the estates of Matisse, Picasso, Chagall and tens of thousands of others. It also quotes Stefan Biberfeld, legal director of Corbis Europe, noting that stock agencies such as Getty and Corbis will benefit from passage of the legislation because it will allow them to market orphaned work without fear of being "intimidated" by copyright owners. The article is in French.

"LE FIL ARTS ET SCÈNES- Menace sur les droits d'auteur : une loi américaine veut rendre libre l'usage des photos, tableaux ou dessins dont on ne connaît pas l'auteur. A qui profite-t-elle ?"

"Simple question de bon sens, disent les uns. Hold-up légal, rétorquent les autres. Légal, car perpétré par les députés et sénateurs américains, téléguidés en coulisse par les géants d'Internet. L'objet du casse ? Les droits d'auteur des peintres, dessinateurs et photographes américains, mais peut-être aussi ceux de leurs collègues étrangers s'ils ne se réveillent pas."

Translation: "Threat to artists' copyrights: A U.S. law would free up the exploitation of photos, paintings, and illustrations whose creators cannot be located. Who profits?

Some maintain that "It's a simple question of common sense". Others retort that "It's legal highway robbery." Legal, because the law is being perpetrated by U.S. Congressmen and Senators remotely controlled by internet giants operating behind the scenes. The target of this break-in: the copyrights of American painters, photographers and illustrators, but perhaps also of their foreign colleagues if they don't wake up in time."

Read the full article: http://www.telerama.fr/scenes/main-basse-sur-les-images-orphelines,33013.php

Take Action: Don't Let Congress Orphan Our Work
E-mail your Senators and Representatives with one click. Go to:
http://capwiz.com/illustratorspartnership/home/
This Capwiz site is open to professional creators and any member of the image-making public. Sample letters have been provided. International artists will find a special link, with a sample letter and instructions as to whom to write. Two minutes is all it takes to write Congress and defend full copyright protection for creators.

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

SBA Orphan Works Roundtable Webcast Stream

The webcast of the Orphan Works Roundtable is now available here:

https://vimeo.com/channels/artistsrights

    "A Seminal Event"
    "Unprecedented"
    "The most effective advocacy in opposition to these bills 
      I have seen."
    "The Gathering of the Tribes"

These are some of the comments we've received from last Friday's Roundtable on Orphan Works, conducted by the Small Business Administration. Artists, photographers, songwriters, musicians, writers and spokesmen for collateral businesses all made this the best attended Roundtable the SBA has conducted.

As one member of the audience said, perhaps the only good thing about the Orphan Works bill is that it's brought so many creative communities together. The full house is the best measure of the concern creators have about this effort to undermine copyright law.

Here are some of the key points to emerge from the discussion:

    • The high cost of digitizing and registering work with commercial databases will make compliance impossible for most artists.

    • This will cause billions of unregistered works to fall into the public domain.

    • To make money, commercial databases will have to promote and facilitate infringement.

    • Infringer-friendly databases will compete with artists for clients.

As one panelist summed up: this bill "will socialize costs and privatize profits."

If you missed this important industry event, please watch it now at your convenience.

You may review the agenda, the panelists and their biographies on the Illustrators' Partnership blog:

http://ipaorphanworks.blogspot.com/2008/08/80808-sba-hearing-on-orphan-works.html

More About the Orphan Works Roundtable

A Reminder: You are invited to attend
THE ORPHAN WORKS ROUNDTABLE
CONDUCTED BY THE SMALL BUSINESS ADMINISTRATION

How Will the Orphan Works Bill Economically Impact Small Entities?
Friday, August 8, 2008
10:00 a.m. - 12:00 noon
Salmagundi Club
47 Fifth Avenue (between 11th & 12th Streets)
New York, NY 10003
212-255-7740
http://www.salmagundi.org
Free Admission

If you live in the New York area, please attend this critical event in person. Congress established the SBA's Office of Advocacy to represent the views of people like us before Federal agencies and Congress. One of their goals is to ensure that our voices aren't lost within the lawmaking process. Your presence at this grassroots event will do much to see that our voices get heard.

Until now, Orphan Works legislation has been driven by anti-copyright forces and special interest groups. Their talking points have defined the issue. That's why, if you've written lawmakers, you may have received those talking points as a response.

We need to get our own views before lawmakers. We've had to go to Washington to make the case for artists. Now Washington is coming to us. We thank the SBA for agreeing to conduct this unprecedented field hearing and we thank the Salmagundi Club for offering us their space.

Don't miss this opportunity to show that our industry is united in opposing the Orphan Works bill.

• This bill would radically change copyright law.
• The change would create an entirely new business model for the licensing of copyrighted work.
• That business model would favor large corporate image banks at the expense of individual creators.
• This would harm artists, photographers, songwriters, musicians, writers.
• It would harm the small businesses that serve and are dependent on the creative community.

This is a side of the story Congressmen haven't heard so far. We need to make it part of an open, public debate.

The Roundtable will be chaired by Tom Sullivan, Director of the Office of Advocacy of the Small Business Administration. Nineteen distinguished panelists, all from the creative community, will represent the copyright interests of grassroots artists.

This event will be webcast.
PLEASE RSVP to illustratorspartnership@cnymail.com and include the names of those attending.

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

8/08/08 Small Business Adminstration (SBA) Roundtable on Orphan Works

You are cordially invited to attend
THE ORPHAN WORKS ROUNDTABLE AND WEBCAST
CONDUCTED BY THE SMALL BUSINESS ADMINISTRATION

How Will the Orphan Works Bill Economically Impact Small Entities?

August 8, 2008
10:00 a.m.—12:00 noon
Salmagundi Club
47 Fifth Avenue (between 11th & 12th Streets)
New York, NY 10003
212-255-7740
http://www.salmagundi.org
Free Admission

Please attend this important industry event. Let government officials hear directly from those of us who will be harmed if this bill passes.

Until now, the Orphan Works bill has been driven by anti-copyright forces and special interest groups. This will be our first opportunity to be heard in a government sponsored forum devoted to the business interests of copyright holders. The Roundtable will be chaired by Tom Sullivan, Director of the Office of Advocacy of the Small Business Administration (SBA). It will give artists from the Northeast the chance to explain the impact of Orphan Works legislation on our careers and the art we create.

• Will the cost of compliance create an unreasonable burden on artists, writers and musicians?
• Will the failure to register work lead to the loss of copyrights?
• Why should artists be forced to supply their business data to commercial databases?
  
• Will the bill create a new business model favoring large corporations at the expense of individual artists?
• Will this change the nature of competition for all of us?

Eighteen distinguished panelists, all from the creative community, will represent the copyright interests of illustrators, photographers, fine artists, art licensors, writers, musicians, and the collateral businesses that serve and are dependent on creators.

Congress established the Office of Advocacy under Pub. L. 94-305 to represent the views of small business entities before Federal agencies and Congress. Advocacy is an independent office within the Small Business Administration (“SBA”), so the views expressed by Advocacy do not necessarily reflect the views of the SBA or the Administration. Part of our role under the Regulatory Flexibility Act (“RFA”) is to assist agencies in understanding how regulations may impact small businesses, and to ensure that the voice of small business is not lost within the regulatory and legislative processes. We regularly host roundtables in order to obtain input from small business stakeholders who may be affected by draft regulations or legislation. For more information, visit Advocacy’s website at: http://www.sba.gov/advo/

The event will be webcast.
PLEASE RSVP to illustratorspartnership@cnymail.com and include the names of those attending.

AGENDA
I. Welcome and Introductions—10:00 a.m.
Thomas M. Sullivan, Chief Counsel, Office of Advocacy, U.S. Small Business Administration


II. Legislative Update on Orphan Works Bill—10:10 a.m.—
Cynthia Turner, Illustrators Partnership
A brief report on the status of the proposed legislation and an overview of the issues that concern individual creators and small business entities.


III. Potential Effect on Small Entities—10:30 a.m.—
Brad Holland, Co-Founder, Illustrators’ Partnership
A discussion regarding various ways the proposed bill could potentially impact individual creators and small entities, including:

• Potential loss of copyright to unregistered work;
• How to define “Best Practices” and “Diligent Search” criteria;
• Effect of legislation on creators’ business models;
• Effect of legislation on collateral small businesses;
• Effect on incentive to create

IV. Potential Cost of Compliance —11:15 a.m.—
Constance Evans, Executive Director,
Advertising Photographers of America
Dr. Theodore Feder, President, Artists Rights Society
An analysis of what economic costs and technical requirements the bill would impose on small entities, including cost of compliance, recordkeeping costs, registration costs, the purchasing of new equipment, the hiring of legal counsel, with a focus on the following questions:

• What will digitizing and registering inventory cost?
• What will increased infringement litigation cost?
• Will increased costs create an unreasonable burden on small artists, writers and musicians?
• Will the legislation in question jeopardize U.S. copyrights abroad, in retaliation for the orphaning of foreign works inside the U.S.?
• Will the failure to register lead to the loss of creative works?
• Will legislation change the nature of competition for small businesses?

V. Adjourn—12:00 Noon


PANELISTS

Rich Bengloff joined the American Association of Independent Music (A2IM) as it’s President in January of 2007. Rich also serves as a board member representing the Independent music label community on the boards of the SoundExchange and the Alliance of Artists and Recording Companies ("AARC"). Rich has spent much of his career in the music and entertainment industry, having served in various capacities at SONY Corporation of America, as Vice President of Columbia Pictures Entertainment; as Vice President, Finance and Administration at Relativity Records/R.E.D. Distribution; and as Vice President, Distribution Operations for Sony Music Distribution between 1989- 1998. He then joined Elektra Entertainment Group to become Senior Vice President/CFO. In 2005, he became WNYC Radio’s Vice President of Finance and Administration and Chief Financial Officer. Rich holds a BA degree from SUNY–New Paltz and an MBA from Columbia University. Rich also co-teaches the music industry course in the Media and Entertainment Department of Fordham University’s MBA program.


Kathleen Bitetti has been the Executive Director of the Artists Foundation since 1992. She was director/curator of the Harbor Gallery at U/Mass Boston from 1989-1992. She holds a BA in both Economics and Art (art history & studio) from the University of Massachusetts- Boston. She graduated Magna Cum Laude with distinction in both majors. Her specialization in economics was public policy and her senior paper entitled, Domestic Public Policy for the Arts, combined both majors. She was awarded the Alumni Association Scholarship Award for Academic Distinction and University Service. She is also an exhibiting installation artist and has had her work shown at the New Bedford Art Museum, The Gallery @ the Distillery, Mobius, Newton Art Center, U/Mass-Boston and many other area galleries. She is currently working on a large scale installation series addressing Domestic Violence Issues. . She is the co-founder of the three artists founded advocacy initiatives: Massachusetts Artists Leaders Coalition, healthcareforartists.org, and artistsunderthedome.org.



Barbara Bordnick received her BFA in fashion design and fine art from Pratt Institute in Brooklyn, New York. After living in Europe, she opened a studio in New York, where her fashion and portrait photography in Harpers Bazaar began drawing wide acclaim. Over the past 35 years, Bordnick has been published internationally in most major magazines and has received innumerable awards for her film and print advertising and editorial work. Her photography has been exhibited widely around the world and is in the permanent collections of The International Center of Photography, Portland Museum of Art, Polaroid Collection, George Eastman House, as well as in many private collections. Bordnick's work includes innovative projects such as "America's Great Women in Jazz", commissioned by Polaroid to introduce large format Polaroid film. She has directed award-winning television commercials for JCPenney fashions, and her portrait of lyricist Yip Harburg became a United States commemorative postage stamp. Her three immensely celebrated books of digital photographs, Searchings: Secret Landscapes of Flowers were the inspiration for, and an integral part of the choreography and stage set of Jennifer Muller's ballet "Flowers". Bordnick is a much-sought-after lecturer in the United States and Europe and is an adjunct professor at Parsons School of Design. An avid supporter of her profession and interested in advancing photographers' rights, Ms. Bordnick served as Chair of the New York Chapter of the Advertising Photographers of America and was the first woman to serve as President of the American Society of Media Photographers.


Terry Brown is the Executive Director of the American Society of Illustrators Partnership and Director Emeritus of the Society of Illustrators. During his tenure the Society has grown its educational programs, exhibition outreach and library/archives. He has lectured at universities and museums nationwide on the History of American Illustration and taught American Culture and the Applied Arts at the School of Visual arts 1995 - 2000. He is currently on the Board of Artists Fellowship, a foundation that supports artists in need and the faculty of The Illustration Academy at Ringling School of Art. He has served on the Advisory Boards of the National Museum of American Illustration (Newport, RI) and the National Art Museum of Sport (Indianapolis). His writings have included This Face You Got, The Education of an Illustrator and many biographical sketches in Society publications. He has also curated exhibitions for the San Diego Museum of Art and the Society.


Gerard Colby, trade union activist, investigative journalist and author, is currently serving his second term as the President of the National Writers Union, UAW Local 1981. Colby is co-author (with Charlotte Dennett) of Thy Will Be Done: The Conquest of the Amazon: Nelson Rockefeller and Evangelism in the Age of Oil (HarperCollins, 1995), author of Du Pont Dynasty: Behind the Nylon Curtain (Lyle Stuart, 1984), and lead contributor to Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press (Prometheus, 2003), winner of the 2003 National Press Club award for press criticism. The National Writers Union is the only labor union that represents freelance writers in all genres, formats, and media.


Frank Costantino, an architectural illustrator for over thirty-five years, has served renown architectural, design, and development firms throughout the United States, Canada and Europe. Mr. Costantino is Co-Founder of the American Society of Architectural Illustrators (ASAI), an international organization representing the professional, business and aesthetic interests of its US and worldwide membership. He is also a Co-Founding Board member of the American Society of Illustrators Partnership (ASIP), and its current Vice-Chairman. He is a recipient of the Hugh Ferriss Memorial Prize—the world’s most prestigious award for architectural illustration—as well as other Juror and Category awards, from the American Society of Architectural Illustrators. His work has been exhibited both nationally and internationally, most notably at The Art Institute of Chicago, The Urban Center of New York, The Octagon Museum in Washington, D.C., as well as in Tokyo, Seoul, Berlin, and Lisbon. Award winning artworks from his career have been published in more than forty-five books or catalogues over the years. Since 1987, his drawings or paintings have been accepted into annual juried ASAI exhibitions. Representative pieces of Mr. Costantino’s work for Chicago projects are included in the permanent collection of The Art Institute of Chicago.


Constance Evans is National Executive Director of the Advertising Photographers of America (APA), a leading trade association representing 2,400 of the top professional advertising and photographic artists, now in its 26th year. With more than twenty five years experience advocating the issues and rights that impact creative professionals, Evans is passionate about helping artists succeed in business while achieving their artistic goals. Among other posts she has held, she served as director of the Skowhegan School of Painting and Sculpture, and was formerly an associate professor of art at Southampton College of Long Island University where she also served as director of the fine arts division. Evans has a Master of Fine Arts degree from Rochester Institute of Technology and is an award winning artist. She serves on the MFA Advisory Board of Western Connecticut State University, the Board of the Center for Contemporary Printmaking, and is a member of the Adobe Photographers Council.


Dr. Theodore Feder, President of Artists rights Society (ARS), a national organization that monitors and protects the intellectual property rights, including the copyrights, of artists from the U.S. and abroad. Among artists represented by ARS are Pablo Picasso, Henri Matisse, Joan Miro, Marc Chagall, Frank Stella, Andy Warhol, Georgia O'Keeffe, Mark Rothko, Willem de kooning, Frank Lloyd Wright and many others. Also President of Art Resource, an organization that represents the rights and permissions interests of many museums, including the Metropolitan Museum of Art, MOMA, the Louvre, the Victoria and Albert Museum, and many others. Received his Ph.D. in Art History and Archaeology from Columbia University where he also taught the subject.


George Fulton is an award-winning advertising and print photographer for major brands. His work has been published in Communication Arts, Print, HOW, and Archive. Among hundreds of awards to his credit, the 2007 ASICS campaign won his second national gold AddyTM for a photography campaign. Building images from the ground up with blank frames and a multitude of layers, his work creates unique brand stories for clients around the world. George is a past National President of the Advertising Photographers of America, the recipient of the APA 25th Anniversary Creativity Award, given in recognition of his work and its impact on the aesthetics of advertising and editorial photography, and the 2008 recipient of the IPC Leadership Awards presented at the United Nations. George speaks extensively to advertising groups and associations around the country, is an experienced writer with articles appearing in many industry publications, and a musician of many years and instruments.


John Harrington is a professional photographer who has traveled extensively in the U.S. lecturing on business practices and is author of the book Best Business Practices for Photographers. In May of 2007, John was honored at the United Nations with the IPC Leadership Award. John continues his 18+ years in assignments in DC and worldwide serving both editorial and commercial clients with credits including the Associated Press, New York Times, Washington Post, Time, Newsweek, The National Geographic Society, USA Today, People, and Life. Commercially, John has worked with over half the Fortune 50 companies, and even more of the Fortune 500. He has spoken at the National Press Photographer's Associations' Northern Short Course for several years, as well as for the White House News Photographer's Association, Smithsonian Institution, and for professional organizations across the country.


Brad Holland is one of the most influential illustrators of the 20th Century. The New York Times, in nominating him for a Pulitzer Prize, wrote that his work goes “beyond the moment to illuminate a general condition universal in space and time. The images are sometimes brutal, but the feeling is almost always compassionate.” The Washington Post has called him “an undisputed star of American Illustration,” and the editors of RSVP, the artists' directory, voted him “the one artist, who in our opinion, has had the single greatest impact on the illustration field during the last twenty five years.” Writing in Print Magazine, critic Steven Heller has written, “as [Jackson] Pollock redefined plastic art, Holland has radically changed the perception of illustration.” Holland’s work has been exhibited in the Musee des Arts Decoratifs, Paris; the U.S. Library of Congress; the Museum of American Illustration; the Mikkeli Art Museum in Mikkeli, Finland; the Musée des Beaux-Arts, Clermont-Ferrand, France. His work is included in the permanent collection of the Library of Congress, the National Portrait Gallery as well as corporate and private collections. Holland’s work has appeared in nearly every major U.S. and many international publications, and feature films. He has received the gold medals of the New York Art Director's Club, the Society of Publication Designers, the Society of Illustrators, and the Society’s prestigious Hamilton King Award. Holland is a member of the Society of Illustrators’ Hall of Fame and the Alliance Graphique Internationale. He is a Founding Board Member of the Illustrators' Partnership of America and Founder and Co-Chair of the American Society of Illustrators Partnership.


Deb Kozikowski is a former elementary educator, Deb has broad background as a business and technical writer and small business consultant as well as a long career in real estate. In 2004 she served as liaison between the Kerry Campaign and Rural Leaders for Kerry and was a co-founder of the DNC’s Rural Working Group. A lifelong resident of western Massachusetts, Deb currently serves as Vice Chair of the Massachusetts Democratic Party and is a member of the Executive Board of the Association of State Democratic Chairs. She is the Co-founder of RuralVotes.com.


Dena Matthews is a medical illustrator, small business owner, speaker, author and teacher, receiving her B.S. degree in Biology while also studying painting, drawing, design and computer graphics at the University of Connecticut. She left her job working in a Pfizer laboratory, to work towards a career that combines her love of science, medicine, art and technology. She earned a master’s degree from the University of Illinois at Chicago’s Biomedical Visualization program, where she studied alongside medical students and under the guidance of professional medical illustrators. There she learned anatomy, histology, pathophysiology, witnessed and documented surgeries and mastered the tools of digital illustration and 3D computer visualization.

Cheryl Phelps is an Art Licensor, Illustrator, Designer and Adjunct Professor at the School of Visual Arts and the Fashion Institute of Technology. Phelps has been active in greeting card, social expression and editorial illustration fields for 21 yrs. Her clients include: Hallmark, American Greetings, Gibson, Paramount, Portal, Marcel Schurman, Current, Mikasa China, Kodak, Target, Nordstroms, Keds, Benny and Smith-Crayola, McCalls Magazine, Girls' Life, Limited Too, Ariel Pub., Scholastic, Harcourt Brace, Stationery Domain, etc. She has exhibited extensively in more than 40 domestic and international painting exhibitions in Galleries and art events. Her teaching & speaking experience includes: The School of Visual Arts-New York, NY;
Fashion Institute of Technology- New York, NY; Kansas City Art Institute-Kansas City, MO; Watkins Institute- Nashville, TN; Osaka Univ.Exchange KCAI- Kansas City, MO; Marywood University- Scranton, PA; Kutztown University- Kutztown, PA; Greeting Card & Licensing Workshops- US; ICON 4- Art Licensing Workshop- SF, CA; SCBWI Conference Speaker- Golden, CO; CAI- Colorado Alliance of Illustrators- Denver, CO; Society of Illustrators-"SILA"- LA, CA; Graphic Artist Guild Licensing Panel Events- NY, NY; Licensing Show- Licensing University Seminar- NY, NY; CHA Show Designers Education Day- Chicago, IL; CHA Show Designers Education Day- Anaheim, CA.


Gene Poole was born in the rough inner city of Glasgow Scotland. He moved to London and was founding member of Alternative Cabaret with Alexei Sayle in the Post Thatcherite UK, releasing the double ‘A’ side single with Alexei, When The Gold Runs Dry. A move to New York City found him recording for Chrysalis with Sly and Robbie, famed rhythm section for Dylan and many others. Joining the New York City acid punk band Warrior Soul resulted in major European Festival tours including Donnington, Monsters Of Rock and being nominated for best live act by MTV in addition to being a host on MTV Europe. He received his first gold record with the Lava/Atlantic release of Bif Naked in 2000 followed by major European Tours and live RTE Broadcasts with his new band. In this, Gene Poole was DJ, Vocalist and guitar player. Gene has moved to Nashville, Tennessee and in addition to having an Op Ed piece published in the Nashville Business Journal is deeply involved in organizing the Nashville community to protest Orphan Works.


David Rhodes has been president of the School of Visual Arts in New York City since 1978. He is an active advocate for all aspects of quality art education. Mr. Rhodes presently serves on the boards of the Association of Colleges and Universities, the New Hampshire Institute of Art, and the School of Visual Arts. Mr. Rhodes is also a Board Trustee for the Association of Regionally Accredited Private Colleges and Universities, the Association of Proprietary Colleges, and the National Association of Visual Arts. He serves as the Vice Chair on the Regents Advisory Counsel on Institutional Accreditation for the University of the State of New York, Commission for Higher Education. He has been a member of the accreditation teams for this nation’s arts schools since 1986, including such distinguished visual arts institutions as Rocky Mountain College of Art & Design, Delaware College of Art and Design, Strayer University, Bradley Academy of the Visual Arts, Fashion Institute of Design & Merchandising, Harrington Institute of Interior Design, Moore College of Art and Design, and Academy of Art College. Mr. Rhodes has testified before Congress numerous times about public policy surrounding higher education, cultural institutions and partnerships. In 2003 Mr. Rhodes was awarded the Distinguished Alumnus Award from Wesleyan University, in 2004 a Gold Medal from the Society of Illustrators, and in 2007 the Award for Outstanding Lifetime Service to Art Education from the University Council for Art Education.


Alexis Scott was a photographers’ agent when she serendipitously found an opportunity to launch her own business. Upon accidentally losing her address book, she quickly learned the true value of having immediate access to her work contacts. She knew that if her creative community contacts meant so much to her, they must have value to others. With this idea in mind, Alexis founded the L.A. Workbook at her kitchen table. Today the Workbook and workbook.com are the premier creative resources for the commercial arts industry in the US and Canada. Thirty-one years in the making, Workbook has been a leading purveyor of graphic arts marketing tools. The company provides commercial artists — photographers, illustrators, designers, letterers and their representatives — with print and online vehicles to promote their assignment work to business creatives at advertising agencies, design studios, corporate art departments and publications. The Workbook Database maintains a stringently verified collection of listings of over 25,000 companies and nearly 60,000 individuals. As publisher and CEO, Alexis manages day-to-day operations for the Workbook while also providing leadership in the commercial arts industry. She is an advocate for artists and photographers and frequently speaking out on their behalf at industry events such as PhotoPlus, the Illustration Conference and the New School in New York. Alexis has also served as a member of the Board of Directors of AIGA (the American Institute of Graphic Arts) and was a past adviser to the Graphic Arts Council of the Los Angeles Museum of Art (LACMA). She has also supported the small business community and specifically women, as a member of the Board of Directors of Count Me In, a non-profit organization that provides microloans to women-owned small businesses.


Frank Stella is a renowned artist with paintings, sculptures, constructions, and prints in most major museums of the world.


Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, a member of the Society of Illustrators, and a Founder and Co-chair of the American Society of Illustrators' Partnership. Cynthia has been self-employed with her partner, Edmond Alexander, since 1987. She creates original illustrations describing pathophysiological cascades, drug actions and devices for pharmaceutical companies, biotechnology firms and their agencies. Cynthia’s work appears in the annual juried RxClub Show—Best in Medical Advertising and the annual salons of the Association of Medical Illustrators. She was selected for inclusion in the juried Art of Medicine Exhibition, Society of Illustrators, New York, the juried Dream Anatomy Exhibition at the National Library of Medicine, and Johnson & Johnson honored her with a one-man show, The Medical Art of Cynthia Turner. She exhibited at the University de Andres Bello Art Gallery and the U.S. Embassy in Santiago, Chile and those works were later included in the permanent collection of the Universidad Andres Bello Medical School.