II am REALLY not one for drama. Not at all. Most of those who know me
realize that!! But, I am really nervous about the Orphan Works bill. It
affects all of us who sell art/designs/photos/etc in the US. And,
although i HATE drama, I want to spread the word on this.
Most of us are appalled at those who share our kits with others. But
what if some company took our pattern, our layout, or even a PHOTO
posted on our BLOG of our kids (removed our copyright info and changed
file name of course), put it on a whole new collection of bedding at
Target, and did not compensate us? Then, someone who saw it at Target
found the same image and put it on stationery? Again, no compensation,
no credit. Then what if it happened again? and again? Come to find out
- the companies are claiming they did a "reasonable search" (have you
ever had an image and tried to find the artist?) and that it was
orphaned so they are not breaking the law?
Even worse, as the article below states, even if you do sue you will
only be able to recover "reasonable" compensation (read - no attorney
fees, etc). So who is going to sue in that case?
Yesterday, both the U.S. House of Representative and
the U.S. Senate introduced two versions of the orphan works bill. Both
the Senate version, S.2913, and the House version, H.R.5889 are very similar in nature and closely mirror the Orphan Works Act of 2006.
Under the proposed legislation, a
person or other entity who wants to use a copyrighted work is required
to make only a "good faith, reasonably diligent search" to locate the
copyright owner. If, after making such a search, the user is unable to
locate the copyright owner, he/she/it gets an almost free license to
use the work. If the copyright owner never comes forward, the user gets
to use the work for free. Even if the copyright owner discovers the use
and demands payment, the MOST the copyright owner can get is
"reasonable compensation," i.e. a reasonable license fee for the use
actually made. There is NO possibility of statutory damages or
attorneys' fees, even if the work was registered before the use was
made without your permission.
Wait, it gets worse: If the
copyright owner discovers the use and demands payment, "where the
infringement is performed without any purpose of direct or indirect
commercial advantage, such as through the sale of copies or
phonorecords of the infringed work, and the infringer ceases the
infringement expeditiously after receiving notice of the claim for
infringement, no award of monetary relief shall be made."
fact that the potential compensation is so low presents a fatal
impediment to collection: if you discover one of your works being used
and demand only your reasonable licensing fee, but the person refuses
to pay, you cannot afford to sue to collect the minimal amount to which
you are entitled. Without the possibility of an award of attorneys'
fees or statutory damages, no lawyer would take your case; and if he or
she did, you would end up paying far more legal fees than you could
The bottom line
is that, even if you have done everything right, including registering
your photographs immediately at the Copyright Office, every photograph
that you publish may be up for grabs if it doesn't have a published
credit. Yes, people have to contact publishers to try to identify and
locate you, but if that doesn't produce your name and/or contact
information for any reason, they may be entitled to a free, or almost
What can you do?
Find out who your elected officials are (if you need help, look here: http://capwiz.com/gag/dbq/officials/)
To get the attention of your representatives, you need to
immediately do ALL FOUR of the following steps:
1. Call the representative and give the bill numbers
and say I oppose this (You'll get someone who works for your
representative and they will log your address and your pro/con
2. email your representative
3. Overnight or priority mail a snail mail letter
4. Fax a letter
SAMPLE LETTER (thanks to Jane, Gail, happy dalmation, etc. from the GAG, IPA and art licensing group) -
Feel free to make this personal with your story
on how the Orphan Works legislation will harm your income. Stories are
Faxes work better than e-mails, as e-mails are too easy to delete.
Congressman/ Congresswoman/Senator (their name)
(their contact info)
Fax: (their fax number)
Re: The Orphan Works legislation
Dear (their name),
My name is (your name) and I live in (your city, state). After reading
about the Orphan Works bill, I am shocked and outraged that this could
happen in our country.
This Orphan Works legislation, if passed, will severely impact my
income and life as an artist. Not only will it give license for others
to legally steal and use my work for free, it will be virtually
impossible for me to afford the time and money to register my creations
in all the potential new registries.
(your personal story if you wish. It should show hardship under the new bill)
I strongly urge you to vote AGAINST the Orphan Works bill and protect
my rights, my copyrights, to all that I have and will create.
PLEASE PASS THIS ON TO EVERY ARTIST YOU KNOW!
What do you all think?