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

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 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.

Orphan Works: A Hobson’s Choice for Artists

Opening statement by Brad Holland, delivered at the Small Business Administration Roundtable: “How Will the Orphan Works Bills Economically Impact Small Entities?”
Conducted August 8, 2008 at the Salmagundi Club, New York City.

Visual artists oppose the Orphan Works Act because it would impose a radically new business model on the licensing of copyrighted work. It would force artists either to entrust their entire life’s work to privately owned commercial databases or see it exposed to widespread infringement.

This Hobson’s Choice would harm artists and collateral small businesses. It would let giant image banks access our commercial inventory and metadata – and enter our commercial markets as clearinghouses to compete with us for our own clients.

I can think of no other field where small business owners can be pressured to supply potential competitors with their content, business data and client contact information. Databases don’t create art. Individuals do. Yet this bill’s provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of art itself.

The bill’s sponsors say it’s merely a small adjustment to copyright law. In fact, its logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.

This exclusive right matters to artists for three reasons:

• Creative control: No one can change your work without your permission;
• Ownership: No one can use your work without your permission;
• Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.

The Orphan Works Act would void that exclusive right:

• It would permit anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work.
• And since you can be infringed without your knowledge anytime, anywhere in the world,
• You could never again guarantee a client that your work has not been – or won’t be – infringed.
• Therefore you could never again guarantee a client the exclusive right to license your work.
• That means that from the moment this bill takes effect, every artist’s commercial inventory would be devalued by 2/3.

The databases this bill would create will be for-profit enterprises. That means to make money, they’ll have to do a lively business identifying orphans for infringers. That means making the databases infringer-friendly. It means promoting infringement. As clients come to rely on these registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans.

The cost of digitizing and registering thousands – or tens of thousands – of individual images will make compliance impossible for most artists. This will cause countless copyrighted works to fall through the cracks and into the public domain. This mass orphaning will be a gold mine for opportunists:

• Some will provide access to orphans as royalty-free work and take their profits in advertising revenue.
• Others will harvest orphans and market them as clip art.
• Others will harvest orphans, alter them slightly to make “derivative works” and register the derivatives as their own copyrighted product.

This will unjustly alter the nature of competition in commercial markets. How many artists - who must create the work they sell - will be able to compete with large internet databases that can provide clients with free or cheap access to the work of others?

This legislation is based on recommendations by the Copyright Office. Yet the Copyright Office studied the specific subject of orphaned work, that is – older work whose authors have died or abandoned their copyrights. This bill would affect commercial markets – a subject the Copyright Office never studied.

This bill’s sponsors have finally acknowledged that it’s not actually an orphan works bill. Instead they’ve re-defined an orphaned work as any work whose author is simply hard to find. Yet this is an irresponsibly broad definition. A professional artist may be accessible to hundreds of clients, but still be inaccessible to millions of other people. Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the theft of private property.

The majority of visual artists are self-employed. We work alone without marketing, administrative and financial support. We receive no salaries, do our own marketing and have no administrative support. We have no safety net. Yet we supply much of the visual material that makes up our popular culture. We have every incentive to see that our work is accessible. But it’s our right to control its use and it’s our prerogative to protect it from exploitation.

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.

We didn’t ask for this law to be drafted. It’s not pleasant to have to be here to oppose it. Most of us would rather be home painting, writing, composing, making music, taking pictures. But if opposing this bill is the cost of our independence, then it’s a price we have to pay, because independence is the price we owe to our craft.

– © 2008 Brad Holland

Brad Holland’s work has appeared in Time, Vanity Fair, The New Yorker, Playboy and the New York Times, among others. He is a member of the Society of Illustrators Hall of Fame, the Alliance Graphique Internationale and co-founder of the Illustrators’ Partnership of America. In 2006 he testified against the Orphan Works Act in both Houses of Congress.

Statement By David Rhodes, President of the School of Visual Arts, at the SBA Roundtable on Orphan Works

Director Tom Sullivan and Assistant Chief Counsel Cheryl Johns, Small Business Administration; New York Congressional Staff, Representatives of the U.S. Copyright Office, World Intellectual Property Organization, and the European Union, my name is David Rhodes. I am President of the School of Visual Arts an independent college of art located in New York City. I hope to persuade you on behalf of my students and faculty that the proposed Orphan Works legislation is an attempt to solve a problem that does not exist. Therefore, given that it has unintended consequences that others have discussed in detail, under the theory of do no harm, the legislation should be abandoned.

The copyright office is convinced that orphaned works are a serious problem because they received over 850 responses to their request for comment. Although only 24% of these responses addressed what the office itself thought was the orphaned works problem, they nonetheless conclude "... there is good evidence that the orphaned works problem is real and warrants attention, and none of the commenters made any serious argument questioning that conclusion." In other words, those who believe there is no problem are defined as not serious and dismissed out of hand. As a gauge to serious some other examples are instructive. When the Federal Communications Commission tried to change ownership rules to allow further media conglomeration, a serious problem, it received millions of negative comments. More recently when the Federal Reserve asked for comments on abusive credit card practices they received 56,000 comments. Obviously, people believe that these are serious issues. Most people simply do not believe that “Orphan Works” are a serious issue.

In fact the very notion of “Orphan Works” is a suspect construction. There are really only two kinds of works. Works which I have made and whose copyright I control and works made by others for whose use I must get permission. My failure to receive permission should not orphan the work. Therefore, there are no “Orphan Works”. The Copyright Office’s own study indicated that the majority of comments it received were not about “Orphan Works”, but about works whose owner could be identified but who either did not answer requests for permission or whose license requirements were too expensive.

More importantly, in its report the Copyright Office provides little or no evidence that there is in fact a problem. There is no systematic review of the various markets to see if they are in fact dysfunctional. All of the supposed examples of the harm caused by orphan works are clearly anecdotal and in a country of 300,000,000 fall far short of the threshold for serious consideration. The Copyright Office’s own paucity of data should lead one to conclude that “Orphan Works” are not a problem at all. They have not impeded the creation of new works. Passing this legislation, however, would impede the creation of new work because it would permit the extensive use without compensation of existing work rather than encouraging end users to commission new works. This legislation would encourage a culture of banal repetition. And, since 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. Copyright protection may have impeded the creation of ever-larger image banks, but that is not a problem - that is the purpose of Copyright. In short there is no problem that this legislation will fix. Therefore, prudence dictates that nothing be done.

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.