Q: On a lot of your drawings (sketch of the week) you type out the copy right symbol and your name. If someone wanted to “steal” it or “borrow” it, all they need to do is just PhotoShop it out, correct?? What’s the point of the copy right symbol??

You mean like this?:

You are 100% right in that it would be very easy for even the most novice of PhotoShop users to remove that copyright symbol/credit and steal this or any image thus marked. Despite that fact, I started doing this a few years ago for 3 reasons:

1. The Orphan Works Act- I’ve endlessly blogged about this ridiculous legislation that keeps rearing it’s ugly head thanks to the lobbying efforts of people like Google and the championing of it by the misinformed and the just plain gullible, so I won’t bother to rehash that here. Read about it HERE if you want, or just skip to this one if you want to see the pro and con arguments broken down. Knowing this might eventually be coming down the pike, placing something like this makes an Orphan Works defense against unauthorized use a lot harder to stick.
2. The “This lock only keeps the honest people out” concept- A guy who used to make cabinets for me for some of my theme park operations used that phrase for flimsy locks that could easily be broken off. The idea was that such a weak lock didn’t give you security against a real thief, but would keep out anyone who would not go so far as to break a lock to get into something. Same concept here. It’s one thing for someone to grab some image and pop it into their website or use it for some other purpose, and it’s another to have to physically remove a copyright credit to do it with impunity. There is something psychological about going to that length, as easy as it might be, that sets off the “I’m doing something I shouldn’t be doing” alarm in most people’s heads. Most people, given even that momentary pause, will think again and usually not do it. A kid might come by one of my booths and rattle a door, but if he finds it locked, even by an easily forced cabinet lock, he will move along. The addition of the credit forces people to make a conscious decision to violate my copyrights, and that is often enough of a deterrent to stop them.
3. Education- This goes hand in hand with the previous reason. I’m trying to do my part to educate people about copyright and to respect it. Some people genuinely think if it’s on the internet, it’s free. If the simple addition of a copyright line get’s people to understand that ALL images on the internet are copyrighted and owned by somebody and that copyright should be respected, then it’s worth the time.

Thanks to Rick Wright for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me your questions and I’ll try and answer them here!

Cartoon by Nick Anderson, Used with Permission

I heard a story from one of the cartoonists I hung about with in Colombia last week that I think sums up much of what is wrong with the Orphan Works bill. The cartoonist’s name was Francisco “Paco” Pincay, and he was from Ecuador. He was telling me about how much trouble a new law that had been passed in Ecuador was causing. He said in an apparent effort to help clear up a clogged court system in his country, the president and his administration passed a law setting a $600 limit on prosecutable theft. He illustrated how the law worked like this:

Say you are walking along in Ecuador and a guy grabs your brand new digital camera and runs off down the street with it. Say he happens to be caught by a policeman down the block, and is brought back to you. If the value of your camera is less than $600, the thief is only required to give it back to you, and then he can go on his way. No arrest, no prosecution… he just walks away scott free.

Of course the government got the result they wanted… fewer court cases for petty crime.  The other result was an huge explosion of those petty crimes. Why not snatch cameras all day long? The worst that could happen is you have to give it back. The best is you get away with it. No risk.

The orphan works bill is just like that. It’s got a noble idea behind it, allowing for the preservation of deteriorating creative works like pictures, illustrations, writing, films, etc where the creators are unknown and cannot be located. However like the Ecuadorian law the orphan work’s desired result is achieved but the price is allowing unencumbered use of creative works commercially with no fear of repercussions other than being forced to pay a “fair rate” for the use of the work IF the user is caught. Why not take the risk if you are a publisher or a webmaster, when the worst that can happen is you pay what you’d have had to in the first place? Your punishment if caught stealing is to “give back the camera”, just so long as you show you made a “reasonable effort” to find the copyright holder.

From The Illustrator’s Partnership:

Orphan Works: Back Again

6.17.09

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

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

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

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

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

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

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

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

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

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

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

We urge this Congress to listen.

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

All the naysayers will now come forth trying to pretend this bill is about saving Great Grandma and Grandpa’s wedding pictures from being lost to decay, or preserving great works of art that are in similar danger of being lost without being copied for posterity…. PLEASE.

Nobody would be opposed to the archiving, copying and preservation of any creative works just because the original creator cannot be contacted for permission to do so. Those are TRUE orphaned works, and all 83 of those creators organizations in the link above would be happy to agree to a way to keep their loss from happening, as long as it doesn’t trample the rights of creators who are not missing in action.

As the IP says, we are not opposed to an orphan works bill… we are opposed to THIS bill, which is designed both to line the pockets of companies like Google who want to charge us to register all of our work in some giant database so it isn’t considered “orphaned” and to allow anybody to use our creative works without paying us with no fear of litigation of payment of damages.

The desired result of preserving deteriorating works can be achieved with a simple changing of the Fair Use exemption to copyright. The Orphan Works Act is akin to using a backhoe to plant a flower… you get a hole dug but destroy the garden in the process.

Do your part to let your congressional representatives know this law should not be passed.

Used with permission

Regular readers of my blog know I have been very vocal in opposing the Orphan Works Act in it’s various forms. It’s my opinion that only someone with another agenda to serve would believe this law is a good thing for anyone but those seeking to use intellectual property without paying the creator for the right to use it, or those who want to profit by forcing those creators to pay to register all their work in private databases. The poor excuse of being able to legally copy great grandma’s wedding pictures and to archive deteriorating creative works is not enough to justify opening the door to wholesale copyright infringement without fear of legal repercussions. Simple changes to the “Fair Use” exemption from copyright can easily address those archiving issues. You can read all my past rants at your leisure.

I know that many people might be sick of hearing about the Orphan Works debacle, but it is too important not to keep on top of. Sometimes lobbyists for some heinous piece of legislation get their laws passed just by wearing down the opposition… they get sick of hearing about and let their indignation go from full boil to a simmer, and eventually a cold pot of water. Don’t let that happen.

One of the sources I often quote is the one I posted from yesterday, the Illustrator’s Partnership. They are at the forefront of the fight against the Orphan Works Act. The IPA now has it’s own blog, where the formerly mass emailed articles I’ve reposted here are now accessible. Right now they are posting a daily series with background information on the origins of the Orphan Works Acts, who is behind it, and who is going to benefit from it if the law gets passed. Rather than reposting the IPA’s articles, I will let my reader’s know when new ones are posted and provide a link. I will also continue to comment and add my thoughts on any new developments as they happen. You can find a permanent link to the IPA blog on the blogroll on the right.

Used with permission

If you ever needed any solid proof that politicians in this country are a bunch of sleazy, special interest catering con artists, here you go:

Yesterday, with the country in the most dire economic crisis in almost 100 years and a 700 billion dollar bailout or some other form of action desperately needing to be hammered out and put into action, the U.S. Senate passed the Orphan Works Act via a process known as “hotlining”. I guess the economy can just wait.

“Hotlining” is a shady practice that was originally designed for quickly passing noncontroversial bills or simple motions, but has been twisted in recent years to pass significant legislation under the radar, avoiding almost any debate. When “Hotlining” the “Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote.  The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to  object — in some cases as little as 15 minutes. If no objection is registered, the bill is passed”-from Open House Project

The House still needs to pass something and it might just drop their version of the bill and pass the senate version.

It is inconceivable to me that with the economic crisis on the table our esteemed political leaders would bother with ANY other legislation AT ALL. Here’s what the Illustrator’s Partnership has to say about what to do now:

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works Opposition: Plan B

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

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

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

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

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

NOW FOR PLAN B

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

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

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

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

_______________________________________________________________

For ongoing developments, go to the Illustrators’ Partnership Orphan Works blog: http://ipaorphanworks.blogspot.com/

Over 70 organizations oppose this bill, representing over half a million creators. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

The Capwiz site is open to professional creators and any member of the image-making public.  International artists will find a special link, with a sample letter and instructions as to whom to write.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place “Add Name” in the subject line, and provide your name and the email address you want used in the message area.

Please post or forward this email to any interested party.

Used with permission

Yes. It’s that time again. The Orphan Works bill is still on the table and still being pushed by the deep pockets and lobby efforts of Google,

FROM THE ILLUSTRATORS’ PARTNERSHIP:

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

A PDF of the collected papers will be available soon from the Illustrators’ Partnership Orphan Works blog: http://ipaorphanworks.blogspot.com/

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

For ongoing developments, go to the Illustrators’ Partnership Orphan Works blog: http://ipaorphanworks.blogspot.com/

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.

Again, I urge you to take the time to write a personal letter or to call your congressional representatives about this important matter. These form letters are fine for numbers but do not get the personal point across.

FROM THE ILLUSTRATORS’ PARTNERSHIP:

ORPHAN WORKS BILL HOTLINED

THIS MEANS IT COULD PASS THE SENATE THIS AFTERNOON
PLEASE CALL YOUR SENATORS IMMEDIATELY

ASK THEM TO PUT A “HOLD” ON THE BILL:
S2913 THE SHAWN BENTLEY ORPHAN WORKS ACT OF 2008

TELL THEM YOU OPPOSE THIS CONTROVERSIAL BILL
ASK THEM NOT TO PASS IT WITHOUT A FULL AND OPEN HEARING
WARN THEM THAT IT WILL DO GREAT HARM TO SMALL BUSINESSES

To find your Senators’ phone numbers go to the Illustrators’ Partnership Orphan Works site:

http://capwiz.com/illustratorspartnership/home/

At the top of the home page, click on “Elected Officials”
You’ll find a US map:
Click on your state,
Then “Senators,”
Then click on each Senator’s name,
Then click “Contact.”
This will give you their phone numbers.

Please phone and fax them both.
Please call everyone you know who is an interested party and tell them we must act immediately to prevent passage of this bill.

Used with permission

Big news on the Orphan Works front today. The House version, H.R. 5889, may go before the US House Judiciary Committee this week for mark up. This is a process where the the Judicary Committee reviews a bill and then considers any ammendments to it prior to it’s being sent to the floor for full House consideration.

Now would be a good time to act if you have been procrastinating on this issue. Here is a correspondence sent out from the National Cartoonist Society today:

PLEASE TAKE A FEW MINUTES TO READ THIS— AND THEN ACT ON IT.
YOUR COPYRIGHTS AND FUTURE LIVELIHOOD IS AT STAKE.

Dear Cartoonist,

We’ve just received word that the US House Judiciary Committee may mark-up the Orphan Works Bill this week.

A markup session is where a Judicial Committee Members will propose, accept and reject amendments to H.R. 5889. After markup, the bill could be reported out of the House Committee and go to the floor for a vote at any time.

WE NEED YOU TO ACT TODAY!!

Please go to the following web page to get Judicial Committee contact information, a sample letter, and links to more information.

http://anti-orphan-works-act.com

These letters should be directed to the Judicial Committee Members.

***We especially need for cartoonists (and family and friends) in the Judicial Committee Member Districts to Call, FAX and Email their concerns ASAP!***

Thanks to everyone who has already contact your legislators and will do so again this week.

A special thanks to everyone who participated in the cartoon doodles during the Reuben Weekend. We put together a booklet that was given to legislators and their staff in the US House and Senate the week we went to Washington DC to voice our concerns.

Regards,

Lynn Reznick Parisi
On behalf of the NCS

Here is the personal letter I sent today to the Minnesota representative on the Judiciary Committee, the Hon. Keith Ellison:

Dear Mr. Ellison,

I am writing to you today concerning the Orphan Works Act, H.R. 5889, that is being considered for mark-up this week. I didn’t want to send you one of the many generic form letters that are being circulated about it… this issue is too important for a point and click response.

I have diligently researched this issue, have read both the senate and house versions of the bill, and have written several articles on subject. As a professional illustrator with almost 20 years worth of work under my belt, I can tell you without hesitation that if passed this bill will seriously damage my profession and my ability to earn a living.

Nobody will dispute that true orphaned works are a problem and that some steps need to be taken to preserve work that is deteriorating or is unable to be enjoyed by the public due to the inability to locate the copyright holder. However the Orphan Works Act kills the patient while it tries to cure the disease. Reform of fair use rights granted to libraries, universities and archivists are one thing, but the reach of this bill goes far past those goals. It radically changes how creators like myself are protected by our copyrights by protecting would be infringers from any damages that might be levied on them for using copyrighted work without permission. It requires that creators like myself register our entire body of work with one or more privatized databases or else leave that work open to being considered an “orphan”.

Even if I DO spend the time and money to register my work in an attempt to prevent it from being orphaned, nothing would prevent another party from claiming they made a “qualifying search” via another database. I could easily find my work appearing in a periodical, website, ad or some other commercial venture that I did not approve it’s use for, and my only recourse under this act is to sue for “reasonable compensation”. Who determines that? I might have quoted that user $1000 for the use of my art, but they only have to pay me $100 because that’s what someone else considers “reasonable”. What if that user was a tobacco company, or a pornographer or some pro-drug magazine that I would never have agreed to have my work appear in regardless of price offered? The Orphan Works Act would allow them to use my work without my permission and fear only a small compensation if they got caught. There is no way I could register my work with every available database, and there is no language in either bill that defines a “qualifying search” well enough to guarantee I will be able to avoid my work not being considered “orphaned”.

Regardless of all that, this bill will discourage and depress the market for new creative works. Buyers of artwork and illustration like I produce will scour the internet looking for free, orphaned works to use instead of paying artists like myself to create new ones. Large image banks will be created that collect work considered orphaned and sell access to it as royalty free artwork, further damaging my liveihood as a creator of new artwork. Worse, because of the language in the bills that Google has lobbied for about “derivative” works, unscrupulous entrepreneurs can take my work, ORPHANED OR NOT, change it slightly and then copyright it themselves and sell the right to use it for cheap like a stock art house might do.

Even IF I could discover someone who is using something I created without compensating me, the best I could do is sue them for damages IF I could prove they did not do a “qualifying search”. How many lawyers do you think will be willing to take that kind of case on, with very little chance of proving wrongdoing thanks to the broad language of this bill? Few to none. That leaves artists and creators with almost no chance of making even knowing infringers pay for their infringement of work orphaned or not.

I am all for the widening of fair use rights for the preservation and enjoyment of truly orphaned works, but the commercial implications of this bill are enormous. Just look at who is lobbying for it… Google and Corbis. They are not interested in the preservation of grandma and grandpa’s wedding photos. Orphan Works is an issue that needs addressing but not to the decimation of the rights of those creators who are making the creative works that 50 years from now will define this generation.

Please take these thoughts into account when considering H.R. 5889 this week.

… good question. It’s “before the legislature” right now, meaning the 110th US Congress somewhere, but is not on the radar for imminent discussion or voting, and both the house and senate are about to take a break until the second week of August. However this can quickly change as bills often get pushed through on the backs of other bills that our esteemed congressional leaders want to see approved for their own reasons, and will vote for one to get votes for the other. Opposition or endorsement of a law is also dependent on whether it applies to someone or not in the sleazy world of politics. Case in point for the Orphan Works Bill: In March of 2008 the American Manufacturing Trade Action Coalition, the National Textile Association (NTA) and the Decorative Fabrics Association, representatives collectively of the US Textile industry, condemned the Orphan Works bill by saying:

“The proposed orphan work legislation is not a solution to the ‘orphan works’ problem. Instead, it is a blueprint for a radically new copyright law. The inability to distinguish between abandoned copyrights and those whose owners are simply hard to find…is the Catch-22 of the Orphan Works project. This legislation would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works – and that would open the door to commercial theft on an unprecedented scale.”

However last month these same organizations suddenly did an about face and now support the bill. Why? Because it’s reported they made a deal that exempts textiles from the bill. Now they endorse it. Nice, eh?

I read this quote by Senator Orrin Hatch (R-Utah) from May of this year:

“This vital legislation provides a mechanism to unlock these orphan works and bring them out in the public domain so Americans can enjoy them once again. It strikes an appropriate balance between protecting against copyright infringement and preserving our national and personal history.”

and

“There are scores of superb music, literary masterpieces and magnificent photos and art that clump corners, collect dust, fill floors and dot shelves in attics and storage rooms across the nation – items of immense artistic and historic merit that are unavailable to Americans because their owners are unknown and people are leery of making the work publicly available for fear of being sued.”

Wow. Utah must the the leading producer of fertilizer in the U.S., if this pile of bullshit is any indication.

It would be a tremendously simple thing to create any number of fair use exemptions for the preservation of deteriorating or truly orphaned works for libraries, archives, museums, universities, etc. Documentaries or the creation of collections of works for the purpose of education or preservation is a no-brainer. In fact the Illustrator’s Partnership drafted a proposed Orphan Works solution that is nothing more than simple common sense and fair use that addresses the reasons these bills supporters keep quoting as justifying this lunacy. The Orphan Works legislation only hide behind those reasons, and in reality opens the door for massive commercial copyright infringement with no fear of financial punishment. My previous posts and links will spell it out for you if you missed them.

In some recent news, the International Council of Creators of Graphic, Plastic, and Photographic Arts is the latest in a long line of creative organizations to publically come out against this misguided legislation. Not surprisingly, both the American Association of Editorial Cartoonist and the National Cartoonists Society also publicly condemned the bills.

Journalist and author Steve Lehman started A Million People Against the Orphan Works Bill, a grassroots groupon Facebook and Flickr dedicated to fighting the Orphan Works Bill. He started an online petition that I urge you to go and “sign” asap.

As always, I encourage anyone who understands the severity of the damage these proposed bills will do to creative professionals to write their senators and representatives and make their concerns known, Yes, you can use the automated form letters set up for the purpose, but please take the time to call or write a personal letter instead if you can. They are worth 1,000 generic on-line forms.

I forgot to mention one other good thing to come out of the Reuben weekend was that the NCS addressed the Orphan Works legislation at their annual business meeting on Saturday morning. Stu Rees, the NCS’s official unofficial lawyer to the membership, educated those at the meeting about the bill and what it could mean to them. It’s a larger problem for some of the long time cartoonists who have done tens of thousands of gag cartoons or illustrations over the years who could easily find their work being used without their consent or without the chance to negotiate a fair rate for it, as I’ve discussed here a lot.

Incidentally, congratulations to Stu for winning the NCS “Silver T-Square” award for his years of service to the profession of cartooning.

One revelation that Stu sprung on us was that is has appearently been revealed that Google is one of the primary forces behind the bill, and they are hiding behind the legitimate fronts of museums, archivists and independent filmmakers who actually have legitimate reasons for wanting to see a solution to real orphaned works and thier deterioration. Google, of course, only wants to make more money. One of the features of the latest Orphan Works bill is a study and the eventual establishment of “private databases” available to register work on and to search for work within to see if the copyright holder can be found. I wonder what internet search company would be first in line to establish just a database, and charge for including your work on it?

In other Orphan Works news, last week Lawrence Lessig, a major proponent of copyright law reduction that you would think would be very much in favor of something like the Orphan Works Act, published this article in the New York Times admonishing the bill and saying it should be dismissed. Lessig, a Standford professor of law and a person who would like to see copyrights basically abolished and everything become public domain after a very short time, calls the law “an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public.” That one threw some people for a loop. Lessig is one person you’d think would be in favor of this type of legislation.

As archaic as a letter writing campaign seems, it is having some effect. Here is a response I recieved from one of my senators, Norm Coleman, from a letter I wrote to his office voicing my concerns:

Dear Mr. Richmond:

Thank you for taking the time to contact me regarding S. 2913, which is commonly referred to as “orphan works legislation.” I share your concerns about the impact this law could have on the rights of an artist to his or her work and I appreciate hearing from you on this topic. Please know that I will closely monitor this issue.

As you may know, S. 2913 was introduced on April 24, 2008 by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-OH) and aims to provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

An orphan work is a copyrighted work of art where it is difficult or impossible to contact the holder of the copyright. On January 31st, 2006 the United States Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee. This report concluded that the treatment of orphan works under current copyright law results in problematic obstacles to successful identification and location of a copyright owner.

Under current law, a copyright is created automatically when the creative expression is fixed in tangible form. I understand you are concerned that a move away from this precedent could make it difficult for artists to obtain and maintain the rights to their own work. Please know that I will not support legislative efforts that weaken an artist’s ability to obtain and retain the rights to their work. Per your request, please know I will keep your views in mind should legislation in relation to orphan works reach the Senate floor for a vote in the 110th Congress.

Once again thank you for contacting me regarding this issue. Please do not hesitate to contact me on any issue of concern to you or your family.

Sincerely,
Norm Coleman
United States Senate

Once again, here is a link to use to send form letters to your senate and congressional representatives about your concerns with the misguided Orphan Works Act. I would, however, urge you only to use them if you cannot find the time to write a personal letter to your elected officials. These form letter campaigns are only about numbers, whereas a personal letter makes a much stronger impression and might actually get read by someone other than some page in a blue dress.

I’ve written a lot about the latest incarnation of the misguided Orphan Works Act, so rather than rehash any of it I’ll just point to this post for the facts and serious issues the bill raises to creative professionals. Briefly, my stand on the bill is that it has serious implications for those who make a living creating new creative works for publication and commercial use, and that the supposed purpose of the bill (to preserve work that is truly “orphaned” so it is not lost in time) would be better served with new definitions and laws for “fair use” of a copyrighted work.

I was talking with illustrator great C.F. Payne about the bill the other day, and he brought up another problem with the bill I had not considered. Chris is a tireless advocate for professional illustrators and their rights, and he knows of what he speaks. He mentioned a potential serious issue wherein an artist may find himself being sued for “infringing: on his own artwork! H.R. 5889 contains the following clause concerning “derivative works”:

”(f) COPYRIGHT FOR DERIVATIVE WORKS AND COMPILATIONS.—Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.”.

What this means: Anyone who goes through the process of declaring a work “orphaned” (i.e. they could not find the author via a “reasonably diligent search”) can then use the artwork as a basis for a “new work” known as a derivative work. They can then copyright the new work and sell it to whomever they like. Even IF the artist comes forward and says they were the original creators of the work the new work was derived from, they are powerless to dissolve the copyright of the derivative work’s creator.

Here’s a scenario: An unscrupulous stock art company employs a dozen researchers who scour old magazines, publications and the internet looking for work without immediate identification. They go through the process of finding it “orphaned” (a process that is still vague and ambiguous). They then hire a group of artists to create derivative works in the same style, changing it just enough to be legally called “derivative” (only 10% according to precedent). Now they copyright it and have a large body of stock illustration that they sell to publishers at cheap prices, damaging creator’s livelihoods and dampening the creation of new works. Under this scenario, I could sell someone the rights to use my caricature of Snoop Dogg for an article and find myself at the wrong end of a lawsuit by a stock house claiming I infringed on their copyright, as they have a rip off version of that same caricature done by a copycat artist and copyrighted in their stock art collection. As long as they could show they performed the steps to find that caricature orphaned, I can do nothing under the language of this bill even if it’s proven it was my work used as the basis of their derivative. I can open up a magazine at any time to see that rip off of my caricature staring back at me and can do nothing about it.

The bills are now introduced and will be a part of the legislative session. Below is a link to take easy action to let your US congress representatives and senators know you oppose the bills and raise the concerns needed. I’m not a big fan of form letter communication, but if you don’t have the time or inclination to write an actual letter to your elected officials, then this is better than nothing.

This link will take you to a selection of form letters from which you can choose. By entering your address it will be forwarded automatically to the appropriate congressional and senate representatives. Do so today and add your voice to those who are justifiably concerned about this serious issue.