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

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.

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.