Thursday, May 22, 2008

More on orphan works...

Hi all -

We are back from Surtex (whoa, what a RIDE!I) and I just posted this on the Kristy Valshan, Inc. blog. This being a REALLY important cause I am posting it here also in case you haven't bookmarked/subscribed to KV's blog yet (and why not? LOL)!

For those of you following the developments on the act, here is more information/links:

Boston Herald

New York Times

Key points of the bill as written by Joanne Fink:

1. The
community is strongly opposed to the bills because we are extremely
concerned about losing our ability to earn a living by licensing our
work for commercial use– which is what we believe will happen if this
legislation passes because:

a. The
bills will basically allow anyone to use a design for any purpose—
without the copyright holder’s permission – after performing a vaguely
defined ‘reasonable search’.

b. Under the
legislation an artist would only be entitled to a “reasonable
compensation” which could be a nominal sum (for example, $200). The
legislation also eliminates the reimbursement of court costs, legal
fees, and statutory damages. Since the amount the artist might receive
would often be less than the court costs, and without the possibility
of a large monetary award it is doubtful that any attorney will take
the case on a contingency basis, the artist will not be able to afford
to go to court, and will thus be unable to protect their work.

c. The
bill requires the implementation of a visual arts database that does
not currently exist. While it does not require artists to register
their work on this database, any work that would not be included on the
database could easily be ‘orphaned’. This is a catch 22; the
legislation only makes sense if there is a reliable way (such as
a visual arts database) to trace a piece of art—without that ability
the net effect will be to CREATE millions of orphaned works—but there
currently is NO reliable way to trace a piece of art.

d. The bill will allow an infringer to create—and copyright—a derivative work.

e. The
biggest problem is that the legislation is scheduled to become
effective whether or not the required databases ever come into
existence, as it is scheduled
to take effect on the EARLIER of:
January 1, 2013, or when the copyright office certifies the existence
of at least two independent, searchable databases. The effective date should—and MUST— be tied to the implantation of searchable databases.

And the latest press release:


to H.R. 5889 - The Act of 2008 and

S. 2913 - The Shawn Bentley Orphan Act of 2008


SENT: May 16, 2008

For immediate distribution and release


A radical proposed change to US copyright law
would allow infringers to exploit the rights of copyright holders with
little or no penalty. Two bills currently on the “rocket docket” would
let infringers “orphan” any copyrighted work whose owner the infringer
failed to locate through a vaguely defined “reasonably diligent”
search. The creative arts industry, including world-renowned artists,
designers, photographers, manufacturers, and licensing businesses have
united to oppose this legislation.

Creative artists
believe these bills reverse America’s historically staunch protection
of property rights and creativity. “By giving infringers the right to
exploit your work without your knowledge or consent, these bills stand
common sense on its head,” says Hall of Fame illustrator Brad Holland.
“If 100 clients can find you to negotiate, but one guy can’t, this law
says the guy who failed can use your work for nothing. That’s quite an
incentive for infringers not to find you – and it represents a major reversal in the logic of property ownership.”

Grant DiCianni, Vice President of
Tapestry Productions agrees. “Currently we put the rights of the
creator first; operating under the philosophy of ‘if it’s not yours,
you need to ask permission or you can’t use it’. It works that way with
cars, land, money, ideas, etc. We have a beautiful piece of property a
few miles away that I wanted to buy to put our company on. The real
estate people did a very through search and could not determine who
owns it. If the logic of this new bill were applied to real estate I
could declare that property “orphaned” and move into it. The first
question a judge would ask me is “Sir, do you have the title to that
property”. “Well, no your honor” I’d have to reply. “Sir, did you have
permission to put your building there”? “No, your honor— I knew full
well I did not own it but I couldn’t find who did so I decided to be a
squatter”. Today every real estate agent, developer, lawyer and
individual with common sense would call that ludicrous when applied to
real estate—and yet our government is willing to apply this logic to
intellectual property. These bills are premised on the idea that there
exists a universal right to use copyrighted works unless specifically
prohibited, which represents a groundbreaking ideological 180 degree
shift from what this country has held onto for the past several

Senate Bill S. 2913 and House Bill H.R. 5889, the
Acts of 2008 were intended to give libraries and museums greater
latitude to commercialize archival works. But critics charge they have
been drafted so broadly they would permit any infringer to commercially
exploit any copyrighted work, from professional art to family photos.

obtain this right, the infringer would merely have to observe certain
bureaucratic protocols before infringing. This would place the greater
burden of diligence on copyright owners, forcing them to register any
work they wish to protect with privately held, commercially run
databases—which do not as yet exist. “The problem is that this
legislation it is scheduled to become effective whether or not those
databases ever come into existence,” explains expert Joanne Fink, President of Lakeside Design. “Image recognition technology is not ready for prime time. Yet failure to register each and every work would expose that work to infringement.”

holders argue that this drastic legal change would jeopardize billions
of currently-protected works, because as infringers came to rely on
these databases to “search” for rights holders, any works not found in
the databases would be free for them to use.

The new bills would severely “limit”
financial penalties for infringing. Opponents charge this will
encourage deliberate theft because statutory damages are the only tool
the law gives copyright holders to prevent abuse– and they say it works. Penalties for infringement almost
certainly deter rampant abuse by making it risky. But as medical
illustrator Cynthia Turner notes “the new bills would protect
infringers by denying artists damages, incurred court costs, attorneys’
fees and other expenses.”

these bills were planned behind closed doors, introduced with little
warning and fast-tracked for imminent passage, a broad-based coalition
of artists and trade associations say they have had little time to
respond and generate public discussion. They say that a radical change
in intellectual property law should not be rushed through Congress
without public vetting. They are calling on Congress to slow down this
legislation until it can be subjected to an open, informed and
transparent public debate.

# # #

Members of the creative arts
community are available for interviews and to provide additional
information. The creative arts community urges you to contact Diane
Carnevale Jones at Professional Marketing for further details or to set
up an interview regarding this issue, or to visit their booth at the
Jacob Javits Center

Diane Carnevale Jones

Professional Marketing

2025 East Beltline SE

Suite 408

Grand Rapids, MI 49546

(616) 949-9104

If you are an artist, digital designer, post photos on
the web, or creator you may be at risk. Please contact your
representative or take 2 minutes to complete the form letter here: Quick and easy way to take action

Thanks for your attention!