Orphan Works Judicial Session Nigh

July 14th, 2008 | Posted in News


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?¬¢‚Äö?ᬮ” 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.

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