Dear Artist,
The Illustrators' Partnership is submitting the following letter to the U.S. Copyright Office. We invite you to read it, consider it, and if you choose, join us in signing it.
The Copyright Office is seeking to examine the issues raised by orphaned works, that is, copyrighted works whose owners are "difficult" or impossible to locate. The "Orphan Work" study was announced January 27th, requesting written comments by March 25 from all parties who would be affected by a change in the law.
This study has been prompted in part by lawsuits filed by Lawrence Lessig, founder of Creative Commons, a vocal leader of the international "Free Culture" movement. It's the contention of this well-funded movement that copyright protection for creative work restrains creativity and free speech. They've embarked on a many-faceted effort to limit or roll back copyrights throughout the world.
The Complaints ask the Court for declaratory judgments that copyright restrictions on orphaned works violate the Constitution. A victory for the plaintiff would force works of art into the public domain even though their copyright has not expired if third parties wishing to exploit the work find it "difficult" to locate the copyright holder.
The following letter is long because we've tried to address the specific issues raised by these Federal challenges, but we hope you'll take the time to read it. If you wish to join us in signing, please reply by e-mail with your full name and country. You may also add your expertise: commercial or editorial illustrator, cartoonist, architectural illustrator, dimensional illustrator, medical illustrator, painter, artist's representative, etc. You may also add any professional affiliation(s).
With Kind Regards,
Brad Holland and Cynthia Turner for the Illustrators Partnership of America
Wednesday, March 9, 2005
Tuesday, March 8, 2005
Demanding Free Culture
Two weeks ago we notified you that the U.S. Copyright Office is conducting a study of “orphaned works” to determine if copyright protection should be removed from creative work because others wishing to exploit it find the authors “difficult” to locate.
In Kahle v. Ashcroft, two commercial archives have asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. The plaintiffs argue that four copyright laws, including the 1976 Copyright Act, are collectively keeping people from gaining access to these orphaned works. The case was dismissed on November 19, 2004, but attorney Lawrence Lessig says the decision will be appealed. He says they had always planned to fight the decisive battle in the appellate courts.
Lawrence Lessig is the Founder of Creative Commons and a leading spokesman for the “Free Culture” movement. The stated mission of Creative Commons is to roll back copyright law to allow “open access to the information commons.” It's allied to another group called PK (for Public Knowledge), which appears to be the financial support behind Kahle v Ashcroft. PK receives funding from the MacArthur Foundation, Ford Foundation, Rockefeller Foundation, and Andy Warhol Foundation, among others.http://www.publicknowledge.org
Kahle v. Ashcroft is one of a series of lawsuits designed to force protected creative work into the public domain. The suits are being planned and executed as “phases” by the Stanford Law School Center for Internet and Society. Lawrence Lessig is Founder and Director of that organization as well.
An example of the direction the Free Culture movement is taking can be found in an Associated Press story, excerpted from the DOW JONES NEWSWIRES January 29, 2005:
Lessig and others of this “social movement” have targeted Big Media for attack because media giants are easy targets for populist rhetoric. Who's going to defend the right of corporate giants to keep copyrights from “the people”? But when it comes to the specific issue of protecting artists’ rights, these activists dismiss individual authorship as a “romantic myth.”
Lessig, like other “copy leftists” believes that “most commercial culture depends on the unpaid appropriation of older material.” Therefore they argue that any individual's work is, in effect, a creation of the culture itself. And since the individual is only a conduit through which the culture creates the work, no individual should have the right to withhold from the culture the work it created.
Whether or not one wants to subscribe to this Deconstructionist theory of creativity is a personal matter. But it's another thing to make it a case for enacting laws regarding the ownership of private property, which is what your art is.
The computer, internet, Photoshop, and access to stock and royalty-free archives have all opened up careers as content providers for people who see the appropriation of others' work as an unstoppable trend. “The mission of the Free Culture movement is to build a bottom-up, participatory structure to society and culture,” says the Free Culture Manifesto. “We will make, share, adapt, and promote open content. We will listen to free music, look at free art, watch free film and read free books.”http://www.freeculture.org/manifesto.php
But if potential users can have legal free access to creative work simply because they want to use it, and if the law is changed to permit it because certain authors are “hard to find,” then the principle that you own your own work will have been subverted. And the beneficiaries of all this will not be limited to teenagers wanting to make interactive art using “free” material from the internet.
There are fortunes to be made by entrepreneurs who want to sell access to creative work. But as we've seen with the case of Napster, current copyright laws interfere with their plans. If the Free Culture movement is successful in eroding copyright protections, it's unlikely the business interests who profit from it will be any different from the media giants the copy left is demonizing today. But that success would cost us copyright protections that have been built up over centuries.
This wouldn't be the first time in history that some people have demanded the right to give away the property of others. And for those who see power for themselves in orchestrating the giveaway, “entitlements” for “the people” will always serve as a righteous mask.
But the era of immediate access to corporate libraries of images, sounds and words is still new. Most individual creators have not yet found the means to create alternative ways to distribute their work directly to the public. If legal scholars really wanted to insure future creativity, they'd work with artists to help build a system for tracking and clearing protected rights as they already exist. That would insure that you retained control of your work, while giving others the means to license those rights from you. This, not the progressive emasculation of copyright law, would be a worthwhile agenda for activists to pursue.
— Brad Holland and Cynthia Turner for the Illustrators' Partnership
This may be republished, posted or forwarded in its entirety to any interested party.
In Kahle v. Ashcroft, two commercial archives have asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. The plaintiffs argue that four copyright laws, including the 1976 Copyright Act, are collectively keeping people from gaining access to these orphaned works. The case was dismissed on November 19, 2004, but attorney Lawrence Lessig says the decision will be appealed. He says they had always planned to fight the decisive battle in the appellate courts.
Lawrence Lessig is the Founder of Creative Commons and a leading spokesman for the “Free Culture” movement. The stated mission of Creative Commons is to roll back copyright law to allow “open access to the information commons.” It's allied to another group called PK (for Public Knowledge), which appears to be the financial support behind Kahle v Ashcroft. PK receives funding from the MacArthur Foundation, Ford Foundation, Rockefeller Foundation, and Andy Warhol Foundation, among others.
Kahle v. Ashcroft is one of a series of lawsuits designed to force protected creative work into the public domain. The suits are being planned and executed as “phases” by the Stanford Law School Center for Internet and Society. Lawrence Lessig is Founder and Director of that organization as well.
An example of the direction the Free Culture movement is taking can be found in an Associated Press story, excerpted from the DOW JONES NEWSWIRES January 29, 2005:
PORTO ALEGRE, Brazil (A) “In a packed warehouse on the sprawling grounds where tens of thousands were attending the World Social Forum in Brazil, [Free Culture advocates from the United States] urged developing nations to vault themselves into the information age [by undermining copyright]. [They] said proprietary software and copyright laws used by corporations to protect intellectual property prevent people in poor countries from access to the power of information and the creation of wealth and creativity. “
“'Free software! Free culture! Demand it now!' [Lawrence] Lessig said to cheers from the crowd of mostly young activists from around the world.”
Lessig and others of this “social movement” have targeted Big Media for attack because media giants are easy targets for populist rhetoric. Who's going to defend the right of corporate giants to keep copyrights from “the people”? But when it comes to the specific issue of protecting artists’ rights, these activists dismiss individual authorship as a “romantic myth.”
Lessig, like other “copy leftists” believes that “most commercial culture depends on the unpaid appropriation of older material.” Therefore they argue that any individual's work is, in effect, a creation of the culture itself. And since the individual is only a conduit through which the culture creates the work, no individual should have the right to withhold from the culture the work it created.
Whether or not one wants to subscribe to this Deconstructionist theory of creativity is a personal matter. But it's another thing to make it a case for enacting laws regarding the ownership of private property, which is what your art is.
The computer, internet, Photoshop, and access to stock and royalty-free archives have all opened up careers as content providers for people who see the appropriation of others' work as an unstoppable trend. “The mission of the Free Culture movement is to build a bottom-up, participatory structure to society and culture,” says the Free Culture Manifesto. “We will make, share, adapt, and promote open content. We will listen to free music, look at free art, watch free film and read free books.”
But if potential users can have legal free access to creative work simply because they want to use it, and if the law is changed to permit it because certain authors are “hard to find,” then the principle that you own your own work will have been subverted. And the beneficiaries of all this will not be limited to teenagers wanting to make interactive art using “free” material from the internet.
There are fortunes to be made by entrepreneurs who want to sell access to creative work. But as we've seen with the case of Napster, current copyright laws interfere with their plans. If the Free Culture movement is successful in eroding copyright protections, it's unlikely the business interests who profit from it will be any different from the media giants the copy left is demonizing today. But that success would cost us copyright protections that have been built up over centuries.
This wouldn't be the first time in history that some people have demanded the right to give away the property of others. And for those who see power for themselves in orchestrating the giveaway, “entitlements” for “the people” will always serve as a righteous mask.
But the era of immediate access to corporate libraries of images, sounds and words is still new. Most individual creators have not yet found the means to create alternative ways to distribute their work directly to the public. If legal scholars really wanted to insure future creativity, they'd work with artists to help build a system for tracking and clearing protected rights as they already exist. That would insure that you retained control of your work, while giving others the means to license those rights from you. This, not the progressive emasculation of copyright law, would be a worthwhile agenda for activists to pursue.
— Brad Holland and Cynthia Turner for the Illustrators' Partnership
This may be republished, posted or forwarded in its entirety to any interested party.
Sunday, February 13, 2005
Copyright Office Announces Orphan Work Study
Federal Register announcement 70 FR 3739
U.S. Copyright Office
January 27, 2005
Issue 246
The Copyright Office seeks to examine the issues raised by "orphan works," that is, copyrighted works whose owners are difficult or even impossible to locate. Uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating them in new creative efforts or making such works available to the public.
The Copyright Office requests written comments from all interested parties on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.
Comments are due by 5:00 p.m. EST on March 25, 2005. For detailed information on submission requirements and further information, go to the Copyright Office website
http://www.copyright.gov/fedreg/2005/70fr3739.html
U.S. Copyright Office
January 27, 2005
Issue 246
The Copyright Office seeks to examine the issues raised by "orphan works," that is, copyrighted works whose owners are difficult or even impossible to locate. Uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating them in new creative efforts or making such works available to the public.
The Copyright Office requests written comments from all interested parties on whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution, and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.
Comments are due by 5:00 p.m. EST on March 25, 2005. For detailed information on submission requirements and further information, go to the Copyright Office website
Thursday, February 10, 2005
Orphaned Art and a Copyright Virus
To understand how a copyright virus would work, we first need to understand the concept of “orphaned” art.
Two years ago, copyright abolitionist Lawrence Lessig tried to undermine copyright protection of creative works. In the case of Eldred v. Ashcroft, the Supreme Court ruled against him. But undaunted, he is now trying again.
In Kahle v. Ashcroft, two commercial archives have recently asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. At stake are works first published after January 1, 1964 and before January 1, 1978. The Complaint asks the Court for a declaratory judgment ruling that copyright restrictions on “orphaned works”, that is, works whose copyright has not expired but which are no longer “available” to potential users, violate the Free Speech Clause of the First Amendment.
Lessig defines “availability” as the ease with which any “user” can locate or identify the creator of any work of art. In Lessig’s logic, the “need” of a “user” to exploit the work of others trumps the right of the work's author to determine when, where or if the work is exploited or what compensation is due for its use. According to Lessig, a user is entitled to expropriate the works of others because the act of expropriation is itself an act of “creativity.” And Lessig argues that where a would-be user of a work cannot lawfully exploit it because he cannot find its author, then the user's right of free speech has been damaged.
Lawrence Lessig is the founder of Creative Commons and is conducting a campaign to institutionalize “alternative” copyright licenses in as many as 60 different countries. This “alternative” license claims to define “the spectrum of possibilities between full copyright, i.e. all rights reserved - and the public domain, i.e. no rights reserved.”
A proponent of the Creative Commons License explains the strategy of the “alternative copyright”:
Creative Commons does not recognize works of art as the unique expression of individuals. In their logic, all “creators” build upon existing works through derivative or “transformative” uses of the work of others. Creative Commons routinely celebrates music remixers, collage makers, and film and print publishers who seek to profit by republishing with impunity the copyrighted works of others.
Consider the vast number of artistic works that appear without credit lines in print or on the internet and you can easily see how insidious this assault on copyright protection can be:
If users can have free legal access to art simply because certain authors are “difficult” to identify or locate, we will see endless opportunities for abuse. Commercial stockhouses, for example, databases and print and web publishing industries could freely gather “orphaned” images for exploitation. And the Copyright Clearance Center, which currently claims they cannot pay artists for the photocopying of their work (because they say they cannot track usage or identify authorship) would see their continued failure to pay artists legitimized.
This case could affect the life’s work of many artists now in the prime of their careers, and provide case law for the further erosion of copyright protections for all artists.
— Copyright © 2005, Cynthia Turner for the Illustrators' Partnership
This may be republished, posted or forwarded in its entirety to any interested party.
Two years ago, copyright abolitionist Lawrence Lessig tried to undermine copyright protection of creative works. In the case of Eldred v. Ashcroft, the Supreme Court ruled against him. But undaunted, he is now trying again.
In Kahle v. Ashcroft, two commercial archives have recently asked the U.S. District Court for the Northern District of California to declare unconstitutional statutes that guarantee the term of copyright protection. At stake are works first published after January 1, 1964 and before January 1, 1978. The Complaint asks the Court for a declaratory judgment ruling that copyright restrictions on “orphaned works”, that is, works whose copyright has not expired but which are no longer “available” to potential users, violate the Free Speech Clause of the First Amendment.
Lessig defines “availability” as the ease with which any “user” can locate or identify the creator of any work of art. In Lessig’s logic, the “need” of a “user” to exploit the work of others trumps the right of the work's author to determine when, where or if the work is exploited or what compensation is due for its use. According to Lessig, a user is entitled to expropriate the works of others because the act of expropriation is itself an act of “creativity.” And Lessig argues that where a would-be user of a work cannot lawfully exploit it because he cannot find its author, then the user's right of free speech has been damaged.
Lawrence Lessig is the founder of Creative Commons and is conducting a campaign to institutionalize “alternative” copyright licenses in as many as 60 different countries. This “alternative” license claims to define “the spectrum of possibilities between full copyright, i.e. all rights reserved - and the public domain, i.e. no rights reserved.”
A proponent of the Creative Commons License explains the strategy of the “alternative copyright”:
“Widespread voluntary adoption of this [alternative] license will render measures like the extension of copyright irrelevant... the “Share Alike” license requires derivative users to adopt a similarly open license. The greater the volume of material with this kind of license that is out there, the greater the incentive to make use of it, even at the cost of forgoing commercial copyrights. Since most commercial culture depends ultimately on unpaid appropriation of older material, the effects will be cumulative, even VIRAL [emphasis added].”
Creative Commons does not recognize works of art as the unique expression of individuals. In their logic, all “creators” build upon existing works through derivative or “transformative” uses of the work of others. Creative Commons routinely celebrates music remixers, collage makers, and film and print publishers who seek to profit by republishing with impunity the copyrighted works of others.
Consider the vast number of artistic works that appear without credit lines in print or on the internet and you can easily see how insidious this assault on copyright protection can be:
Step 1.
Declare any work of art whose author cannot be located or identified as an “orphaned” work freely available for use by others.
Step 2.
Allow the user of any “orphaned” work to embed his “new derivative creation” with the Creative Commons viral license. Now standard copyright law could become as vulnerable to the copyright virus as computers to an internet worm.
If users can have free legal access to art simply because certain authors are “difficult” to identify or locate, we will see endless opportunities for abuse. Commercial stockhouses, for example, databases and print and web publishing industries could freely gather “orphaned” images for exploitation. And the Copyright Clearance Center, which currently claims they cannot pay artists for the photocopying of their work (because they say they cannot track usage or identify authorship) would see their continued failure to pay artists legitimized.
This case could affect the life’s work of many artists now in the prime of their careers, and provide case law for the further erosion of copyright protections for all artists.
— Copyright © 2005, Cynthia Turner for the Illustrators' Partnership
This may be republished, posted or forwarded in its entirety to any interested party.
Wednesday, February 9, 2005
Alternative Copyright Gains Ground in Europe
“An alternative copyright that allows authors and artists to give away their work while retaining some commercial rights is being adapted for use across Europe and beyond.” This according to Jennifer L. Schenker, writing in the International Herald Tribune: New Copyright Grants Artists Greater License, June 14, 2004.
“Lawyers, musicians and filmmakers gathered in Berlin on Friday [June 11, 2004] for the German introduction of the [alternative] licenses, which were first drafted for use in the United States in 2001 by Creative Commons, a Silicon Valley nonprofit organization. The German debut followed the introduction of Creative Commons licenses in Japan in March, in Finland in May and in Brazil on June 4.
“Some 60 countries are expected to adapt Creative Commons licenses to their jurisdiction, ‘and Germany is a critical part of that process,’ said Lawrence Lessig, the Stanford University law professor who is the chairman and co-founder of Creative Commons.
“Creative Commons licenses will be introduced in the Netherlands next Friday and in France by the end of the summer, with a goal of creating licenses for all EU countries by year-end, Lessig said in an interview by phone last week.”
According to Lessig, these alternative copyrights will give artists greater “freedom” to give away their work. According to the article, “Artists choose how they want to share the work, specifying whether they want credit for reuse, whether they want to be paid for commercial use or whether it is acceptable to change [the work].”
Since nothing in current copyright law prevents artists from giving up their copyrights or declining payment and credit for their work, artists may wonder why they need new laws giving them “greater license” to do so. In fact, the “alternative” copyright is intended to act as a copyright “virus,” infecting traditional copyright protections throughout society. This would give commercial access to protected works by anyone wishing to profit from their use.
Lawrence Lessig is a driving force behind “The Copy Left,” a loose coalition of legal scholars and internet providers, whose goal is to rollback or abolish traditional copyright protections. They blame “the romantic notionof authorship” for impeding the distribution of culture and inhibiting creativity in the arts.
“Lessig is the author of “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.” He has argued before the U.S. Supreme Court against extending the length of time that copyrights cover original works [Eldred v Ashcroft] and is an advocate of open-source software, which is distributed freely on the Internet.”
This may be republished, posted or forwarded in its entirety to any interested party.
“Lawyers, musicians and filmmakers gathered in Berlin on Friday [June 11, 2004] for the German introduction of the [alternative] licenses, which were first drafted for use in the United States in 2001 by Creative Commons, a Silicon Valley nonprofit organization. The German debut followed the introduction of Creative Commons licenses in Japan in March, in Finland in May and in Brazil on June 4.
“Some 60 countries are expected to adapt Creative Commons licenses to their jurisdiction, ‘and Germany is a critical part of that process,’ said Lawrence Lessig, the Stanford University law professor who is the chairman and co-founder of Creative Commons.
“Creative Commons licenses will be introduced in the Netherlands next Friday and in France by the end of the summer, with a goal of creating licenses for all EU countries by year-end, Lessig said in an interview by phone last week.”
According to Lessig, these alternative copyrights will give artists greater “freedom” to give away their work. According to the article, “Artists choose how they want to share the work, specifying whether they want credit for reuse, whether they want to be paid for commercial use or whether it is acceptable to change [the work].”
Since nothing in current copyright law prevents artists from giving up their copyrights or declining payment and credit for their work, artists may wonder why they need new laws giving them “greater license” to do so. In fact, the “alternative” copyright is intended to act as a copyright “virus,” infecting traditional copyright protections throughout society. This would give commercial access to protected works by anyone wishing to profit from their use.
Lawrence Lessig is a driving force behind “The Copy Left,” a loose coalition of legal scholars and internet providers, whose goal is to rollback or abolish traditional copyright protections. They blame “the romantic notionof authorship” for impeding the distribution of culture and inhibiting creativity in the arts.
“Lessig is the author of “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.” He has argued before the U.S. Supreme Court against extending the length of time that copyrights cover original works [Eldred v Ashcroft] and is an advocate of open-source software, which is distributed freely on the Internet.”
This may be republished, posted or forwarded in its entirety to any interested party.
Sunday, February 22, 2004
“The Tyranny of Copyright?”
Sunday, February 22, 2004 the New York Times Magazine published a letter from the Illustrators' Partnership (IPA) and the American Society of Media Photographers (ASMP) written in response to “The Tyranny of Copyright?” by Robert S. Boynton, published January 25, 2004:
For those who missed it, here is the letter in its entirety:http://www.nytimes.com/2004/02/22/magazine/22LETTERS.html
The original Times article can be found here:
http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html
The IPA first noted the movement to abolish copyright in “Mothra Versus Rodan” on the IPA website:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00100
The IPA wishes to thank Janet Froelich, Art Director of the New York Times Magazine for insuring that it was called to the attention of the Editors.
This may be republished, posted or forwarded in its entirety to any interested party.
For those who missed it, here is the letter in its entirety:
January 29, 2004
Editor
New York Times Magazine
229 West 43rd Street
New York, N.Y, 10036
To the Editor:
“The Tyranny of Copyright?” (Jan 25, 2004) suggests that “culture” is a public “entitlement” endangered by copyright extensions, and it portrays legal scholars and trial lawyers as visionaries who hope to restore the “Jeffersonian” ideal of a “free society” by rolling back or ending the protections now afforded creative work. But the case against copyrights is academic. Creative work is produced by real people working in the real world. Readers of this article should not confuse the length of copyright enjoyed by corporations with the copyright protection granted to freelance creators.
Corporations don't create. Individuals do. The longer a corporation can extend copyrights produced by employees or obtained from freelancers, the longer it will thrive and try to keep that work out of the public domain. Here the lawyers may have a point. But freelance creators face a different situation. We speak for many of them.
Most freelancers have no other source of income but their creative work. The accumulated value of that work is no different than the value that accrues to your home, and it no more robs the public of its “entitlement” than does the ordinary ownership of private property. Indeed without the incentives guaranteed to individual creators under copyright law, the tradition of independence in the popular arts would be at risk - and with it, the variety of independent viewpoints that freelancers bring to public life. That would rob the public in a noticeable way.
For decades, freelance artists and photographers have given shape to the content of popular culture. Within the last two decades their ability to earn a living has come under assault: from publishers who demand they surrender copyrights in return for assignments, from cutthroat competition with discount “image providers,” and now from legal “visionaries” who wish to make copyright itself obsolete. The case for abolishing copyright can be likened to a scheme for the redistribution of income. In theory it sounds public-spirited. In reality it deadens motivation. Protecting a creator's individual copyrights will cost the public nothing, but it will insure the continued flow of creative work from which the public will ultimately benefit.
Sincerely,
Brad Holland
Founding Board Member
The Illustrators' Partnership of America
New York City
Eugene H. Mopsik
Executive Director
American Society of Media Photographers
Philadelphia
The original Times article can be found here:
The IPA first noted the movement to abolish copyright in “Mothra Versus Rodan” on the IPA website:
The IPA wishes to thank Janet Froelich, Art Director of the New York Times Magazine for insuring that it was called to the attention of the Editors.
This may be republished, posted or forwarded in its entirety to any interested party.
Monday, April 15, 2002
Mothra vs Rodan: The New Copyright Wars
A new copyright battle is looming in the courtrooms of America, and if you thought you were already confused about how to protect your copyrights, welcome to the Fun House.
We’ve all seen the opening skirmishes of this contest in the highly publicized Napster lawsuits. Yet, I didn’t appreciate how much this fight would affect artists until this past February when, as members of the IPA, Cynthia Turner and I represented the interests of "creators" at the American Assembly forum at Arden House in Harriman, New York.
As panelists for artists’ rights, we made the case that many copyright problems facing freelancers are in fact antitrust problems. Yet, the chief topic for the other panelists was a debate brewing in various quarters over the length of copyright. This is a reaction to the rolling term extensions that have been granted copyright holders over the last two decades. These extensions—indeed, the structure of copyright itself—are now being opposed by other interests who wish to Napsterize or even abolish copyright altogether. These issues are complicated, but they can be sketched here simply.
Currently, copyright protects our work for our lifetime plus 70 years. Twenty years of that term were added within the last decade by passage of the "Sonny Bono Copyright Term Extension Act." Some say this legislation was a favor done for the Disney Corporation who feared losing their early copyrights on Mickey Mouse material. Others point out that the Bono Act merely brings the United States into compliance with international copyright law, a necessary step if we wish to maintain reciprocal overseas trade agreements.
Yet, the internet has spawned opponents to these long-standing protections. Upstart commercial interests, backed by certain academics, contend that "the black hole of copyright" inhibits free speech and overreaches the intent of the Constitution’s framers. They point out that copyright was originally intended to protect only authors of "maps, charts and books," and they seek to overhaul the entire copyright system. One legal scholar, Lawrence Lessig, who spoke at Arden House, has even proposed reducing copyright to a period of five years, with 15 increasingly expensive renewal options. And the Supreme Court has recently agreed to hear Eldred v. Ashcroft, a case which seeks to roll back the Bono Act. Lessig himself will argue the plaintiff’s case. Whether these opponents of copyright win or lose this case, they are apparently well-funded and we must assume that they will persist in their efforts to some affect.
In the face of this challenge, it’s not surprising that publishers are fighting back. And as our clients, they hope to enlist our support, arguing that we share a "mutual interest" in protecting our work. It seems they are passionate about protecting our copyrights, once they’ve gotten them away from us. Unfortunately, they’ve been less scrupulous about the means by which they get those rights from us in the first place. Remember all-rights contracts? "Sign this agreement or you can’t work for us again?"
So should we support them?
Well, let's say someone burglarizes your house. On his way to the getaway car, somebody robs him. Now, let's say the burglar sues the robber for the return of the goods and calls you into court to identify the stuff. Do you go? It's your call, but I'd prefer to remember where our issues lie.
Unlike mortals, corporate media giants can "live" as long as they remain solvent and have assets to manage. The longer they can extend the copyrights they hold, the longer they can guarantee the company will thrive. Companies like Disney know they can exploit stories from the public domain indefinitely, as long as they can hire wage slaves (including artists) under work-for-hire contracts to convert those free properties to long-term Disney copyrights.
Meanwhile, companies like Getty and Napster hope to become overnight media giants by selling access to music and imagery they could never afford to develop or buy the rights to. They hope to do this by exploiting a loophole in existing copyright law.
This loophole exists because the legislators writing the 1976 Copyright Act didn't foresee the internet. That means they didn't enact provisions to cover it. Therefore, some now argue that copyright shouldn't apply to the web at all. And since experts predict most work will ultimately be licensed through the internet, this loophole, if widened, would allow entrepreneurs to bootleg copyrighted material for their own profit. That's why we're seeing the cynical legal briefs by corporations suddenly concerned about Freedom of Speech and the Original Intent of the Framers.
Picking sides in a contest of this sort would be like choosing sides in a battle between Mothra and Rodan over which one of them gets to eat you. We ought to have the good sense to keep our eyes on the ball. I'm all for copyright protection that lasts as long as possible. But I'm less concerned about keeping the rights to my work 50, 70 or a hundred years after I'm dead than in keeping the rights while I'm alive.
At Arden House, several people privately warned that if left to manage our own copyrights, artists would fail to register and protect them in the same ironclad way publishers now do. A crazy quilt of rights, they say, protected willy nilly by artists scattered across the country, would bewilder and exasperate clients. It would drive them into the arms of Getty and Napster. They have a good point.
For decades, we've thrived in our cottage industry, despite inherent disorganization, geographical isolation and slip-shod record keeping. But the rise of "content aggregators" (rhymes with alligators) now gives clients a fast, cheap way of acquiring the rights to work. For illustrators, stock houses are the most familiar example of this development. Stock houses may not have original work and it may not be good. But it's fast, cheap and efficient. And clients have demonstrated a willingness to use it in numbers great enough to have affected thousands of careers.
That's why it's important to remember this is not a debate about selling stock. Whether you do or don't license secondary rights is a marginal issue. What's at stake is the protection and management of your rights. At the IPA, we believe a licensing agency will give artists a means of protecting and managing their rights collectively, while giving clients an efficient means of finding and clearing those rights. This goal is consistent with the demands of competition in today's changing market.
We’ve all seen the opening skirmishes of this contest in the highly publicized Napster lawsuits. Yet, I didn’t appreciate how much this fight would affect artists until this past February when, as members of the IPA, Cynthia Turner and I represented the interests of "creators" at the American Assembly forum at Arden House in Harriman, New York.
As panelists for artists’ rights, we made the case that many copyright problems facing freelancers are in fact antitrust problems. Yet, the chief topic for the other panelists was a debate brewing in various quarters over the length of copyright. This is a reaction to the rolling term extensions that have been granted copyright holders over the last two decades. These extensions—indeed, the structure of copyright itself—are now being opposed by other interests who wish to Napsterize or even abolish copyright altogether. These issues are complicated, but they can be sketched here simply.
Currently, copyright protects our work for our lifetime plus 70 years. Twenty years of that term were added within the last decade by passage of the "Sonny Bono Copyright Term Extension Act." Some say this legislation was a favor done for the Disney Corporation who feared losing their early copyrights on Mickey Mouse material. Others point out that the Bono Act merely brings the United States into compliance with international copyright law, a necessary step if we wish to maintain reciprocal overseas trade agreements.
Yet, the internet has spawned opponents to these long-standing protections. Upstart commercial interests, backed by certain academics, contend that "the black hole of copyright" inhibits free speech and overreaches the intent of the Constitution’s framers. They point out that copyright was originally intended to protect only authors of "maps, charts and books," and they seek to overhaul the entire copyright system. One legal scholar, Lawrence Lessig, who spoke at Arden House, has even proposed reducing copyright to a period of five years, with 15 increasingly expensive renewal options. And the Supreme Court has recently agreed to hear Eldred v. Ashcroft, a case which seeks to roll back the Bono Act. Lessig himself will argue the plaintiff’s case. Whether these opponents of copyright win or lose this case, they are apparently well-funded and we must assume that they will persist in their efforts to some affect.
In the face of this challenge, it’s not surprising that publishers are fighting back. And as our clients, they hope to enlist our support, arguing that we share a "mutual interest" in protecting our work. It seems they are passionate about protecting our copyrights, once they’ve gotten them away from us. Unfortunately, they’ve been less scrupulous about the means by which they get those rights from us in the first place. Remember all-rights contracts? "Sign this agreement or you can’t work for us again?"
So should we support them?
Well, let's say someone burglarizes your house. On his way to the getaway car, somebody robs him. Now, let's say the burglar sues the robber for the return of the goods and calls you into court to identify the stuff. Do you go? It's your call, but I'd prefer to remember where our issues lie.
Unlike mortals, corporate media giants can "live" as long as they remain solvent and have assets to manage. The longer they can extend the copyrights they hold, the longer they can guarantee the company will thrive. Companies like Disney know they can exploit stories from the public domain indefinitely, as long as they can hire wage slaves (including artists) under work-for-hire contracts to convert those free properties to long-term Disney copyrights.
Meanwhile, companies like Getty and Napster hope to become overnight media giants by selling access to music and imagery they could never afford to develop or buy the rights to. They hope to do this by exploiting a loophole in existing copyright law.
This loophole exists because the legislators writing the 1976 Copyright Act didn't foresee the internet. That means they didn't enact provisions to cover it. Therefore, some now argue that copyright shouldn't apply to the web at all. And since experts predict most work will ultimately be licensed through the internet, this loophole, if widened, would allow entrepreneurs to bootleg copyrighted material for their own profit. That's why we're seeing the cynical legal briefs by corporations suddenly concerned about Freedom of Speech and the Original Intent of the Framers.
Picking sides in a contest of this sort would be like choosing sides in a battle between Mothra and Rodan over which one of them gets to eat you. We ought to have the good sense to keep our eyes on the ball. I'm all for copyright protection that lasts as long as possible. But I'm less concerned about keeping the rights to my work 50, 70 or a hundred years after I'm dead than in keeping the rights while I'm alive.
At Arden House, several people privately warned that if left to manage our own copyrights, artists would fail to register and protect them in the same ironclad way publishers now do. A crazy quilt of rights, they say, protected willy nilly by artists scattered across the country, would bewilder and exasperate clients. It would drive them into the arms of Getty and Napster. They have a good point.
For decades, we've thrived in our cottage industry, despite inherent disorganization, geographical isolation and slip-shod record keeping. But the rise of "content aggregators" (rhymes with alligators) now gives clients a fast, cheap way of acquiring the rights to work. For illustrators, stock houses are the most familiar example of this development. Stock houses may not have original work and it may not be good. But it's fast, cheap and efficient. And clients have demonstrated a willingness to use it in numbers great enough to have affected thousands of careers.
That's why it's important to remember this is not a debate about selling stock. Whether you do or don't license secondary rights is a marginal issue. What's at stake is the protection and management of your rights. At the IPA, we believe a licensing agency will give artists a means of protecting and managing their rights collectively, while giving clients an efficient means of finding and clearing those rights. This goal is consistent with the demands of competition in today's changing market.
Subscribe to:
Posts (Atom)