Update on Orphan Works
Read the 10 things you can do to help oppose the Orphan Works legislation, which follows below. Note that the Craft and Hobby Association are actively opposing the legislation.
Also below is a Press Release that you can send to local papers and anyone else that you think may spread the information.
ORPHAN WORKS OPPOSITION
Artist Action Plan
10 things you can do to help oppose the Orphan Works legislation:
1. Learn why this legislation is REALLY harmful to all visual artists (below).
2. Send a letter to your congressional leaders saying you oppose the legislation. It only takes 2 minutes to write to Congress and protect your copyright.
3. Check the list of House Judiciary committee members; if you happen to live in one of their districts, PLEASE CALL THEM Monday or Tuesday (before the Member’s meeting Wednesday the 21st) and say (see script below):
4. Help raise public awareness of the problem by telling your friends and families about the problems with the legislation and asking them to write to their congressional leaders too. If you have a blog, post information on your blog. If you don’t have a blog ask a friend who does to post it.
5. Inform any organizations that you belong to about the legislation and ask if we can list their name as one of the groups opposing the legislation. If so, we need the name, description of the group/purpose, number of members, contact information and contact person.
6. Speak out about how the legislation will affect you and your business. We have just launched a PR campaign.
7. re looking for individuals who can provide a local ‘human interest’ angle. It could be great publicity for you and your business, too. If you would like to be interviewed by your hometown paper, please sign the media contact sheet.
8. Sign the petition asking the Small Business Administration to intervene.
9. Consider joining the Craft and Hobby Association -they are actively opposing the legislation.
10. Share this list with everyone you know.
11. Visit www.owoh.org for the latest information and suggested course of action.
Thanks for all you are doing to help make sure that these bills do not pass in their current form. Together we CAN make a difference.
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—PRIMARY OBJECTONS TO H.R. 5889 – The Orphan Works Act of 2008
FROM THOSE INVOLVED IN THE ART LICENSING INDUSTRY
1. It changes the 1976 U.S. Copyright Act, and makes it virtually impossible for artists to protect their work. It basically allows anyone to use a design without the copyright holder’s permission.
Under current law, you receive basic copyright protection even if you don’t register your work. Under Orphan Works law, your work could be declared an orphan even if you have registered it. Congress, in enacting the Copyright Act of 1976, provided that copyright exists in the creation of any work that is copyrightable subject matter, regardless of whether or not the owner has performed any legal formalities such as registration or copyright notices, or taken any steps to protect or defend the copyright. Since 1978 (when it was enacted), many creators have relied upon the Copyright Act of 1976 and employed business practices based upon the protections it offered. The proposed Orphan Works Acts of 2008 would have the effect of depriving creators the ability to enforce their copyrights because they did not take steps the Copyright Act of 1976 did not require them to take. In essence, it will give infringers the legal means to use a design without the copyright holder’s permission.
2. It requires artists to attempt to protect their work by registering it with a digital database system (presumably for a fee, in addition to the copyright filing fee)-when no such system exists!
The proposed legislation is predicated on the establishment of private, profit making registries that would establish databases of digital versions of artworks and provide a place for infringers to try to locate the artist, BUT the bill will become effective whether or not these databases ever come into existence. Since the technology for effective searching by image has yet to be developed, this will relieve the infringer of liability if he simply attempts a search, even one that cannot possibly be performed successfully.
In addition, the legislation places no limit on the number of these registries or the prices they would charge. The burden of paying for digitization and depositing the digitized copy with the private registry would presumably fall entirely on the artist, and even if an image is contained in the registry, as long as the infringer “looks” without finding it, the infringement is allowed. There is no liability imposed for the failure of a database to find an image registered in that database when it is searched (even if copyright has been filed), and no requirement that all available databases be searched, thus potentially requiring multiple registrations (and multiple registration fees). There are also no safeguards to prevent any person or company from fraudulently registering work they do not own.
3. It eliminates statutory damages wherever an infringer can successfully claim an Orphan Works defense, thus eliminating the only tool the law provides to prevent deliberate infringement.
Current law almost certainly deters rampant infringement because the present remedies – damages of up to $150,000 per infringing article– make infringement risky. By limiting remedies the Orphan Works amendment will effectively create a no-fault license to infringe.
4. It allows for an infringer to create-and copyright-a derivative work from the original design.
Under current law, the right to create a derivative work is one of an artist’s exclusive rights. (Section103 (a)) says a user can’t copyright a derivative image that he’s infringed. “Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Under the proposed new bill, since the entirety of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original. This would be a de facto capture of new, exclusive rights by the infringer. In other words, these bills allow infringers to make and copyright derivatives-even if the copyright holder to the original work objects.
5. It leaves infringing works (and products incorporating them) subject to seizure in other countries under the Berne Convention for the Protection of Literary and Artistic Works (the international agreement governing copyrights to which the United States is a signatory). It also invites sanctions from around the world under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to which the Unites States is also a signatory, because international artists’ works would be just as vulnerable to infringement within the U.S. under the terms of the Orphan Works Amendment. If this legislation passes, it would mean a return to pre-1976 U.S. Copyright Act when many artists’ works fell into the public domain because they could not afford to comply with the formalities of registration as a condition of copyright protection. This violates the trust under which American artists have worked for the last 30 years and effectively nullifies our U.S. Copyright registrations.
BACKGROUND INFORMATION ON THE ART LICENSING INDUSTRY
LICENSING IS BIG BUSINESS
The following statistics have been provided by LIMA (the Licensing International Merchandiser’s Association). Licensing is big business; it accounts for $175 billion in retail sales of licensed merchandise worldwide, and over $105 billion in the United States.
In 2006, the $3.3 billion in retail sales of products featuring a licensed piece of art brought licensors-artists and designers- royalty revenues of $182 million. These sales came from the following categories, affecting a wide range of American manufacturers:
3% gifts and novelties
15% home d_cor
15% housewares
10% paper products
7% accessories
5% apparel
4% publishing
3% food and beverage
3% health and beauty
2% infant products
HOW THE ART LICENSING INDUSTRY WORKS
Whoever owns the rights to a 2-or 3-dimensional design or image (usually the artist/creator of the design) is the LICENSOR and whoever wants to acquire the rights to reproduce that design or image is the LICENSEE. Artists/LICENSORS make money by licensing (essentially “renting”) the right to reproduce their design or image to different manufacturers (LICENSEES) to use on different sorts of products. For example, a sailboat image can be licensed to Company A for a mug; Company B for a coaster, and Company C for an art print. Licensing is an interesting and complex business, and it is a successful and profitable business because our current copyright law protects the creator’s rights and safeguards their ability to profit from their intellectual property.
When a manufacturer wants to feature an artist’s work on one or more of their products, it is important to them that they are the only company who has the right to reproduce that design on that particular product. If other manufacturers are able to put the same design on the same product, then it hurts the licensee, especially if the manufacturer licensee has to factor the artist’s royalty into their price structure. Meanwhile, the infringing manufacturer does not and can therefore bring the product to market at a lower price point. In fact, one of the great incentives NOT to infringe on an artist’s copyright, is that currently there is a stiff penalty-up to $150,000 for each instance that infringement is proven. The proposed Orphan Works bills removes the penalty for infringement, which will make it easy for unscrupulous companies to infringe on someone’s copyright and receive nothing more than a ‘hand-slap’ as punishment.
EXAMPLE OF HOW H.R. 5889 – The Orphan Works Act of 2008 COULD EFFECT THE ART LICENSING INDUSTRY
Here’s an example of how the Orphan Works issue could play out in the real world: a local librarian sees a charming illustration and decides to use this image on a poster that advertises an annual poetry contest in her community, without any authorization from the artist. A few months later, another individual sees the old poster stapled to a bulletin board. He tries to find the creator but isn’t able to after a “reasonable search,” and decides to copy the artwork for a collection of t-shirts that his employer, a t-shirt manufacturer, produces and sells to major retail store chains, for a $200,000 profit.
When the illustrator (and copyright holder) discovers his artwork has been used in this manner by seeing a display in one of the retail stores, he naturally contacts the manufacturer to let them know they have used his art. Under our current law (the 1976 Copyright Act), if the artist had registered the design with the copyright office, he would be entitled to statutory damages of up to $150,000 in addition to attorney’s fees and court costs. If the Orphan Works legislation passes, the manufacturer (and anyone else in the distribution chain) would not have to pay the copyright holder anything more than a “reasonable royalty,” which could be a nominal sum (for example, $100). Since the amount the artist might receive would be less than court costs, it would not be practical or affordable for the artist to sue the manufacturer.
This could also affect the artist’s relationship with his existing licensees. A high-end company which was featuring this artist’s work may decide to drop his images from their line one they see the same design on cheap t-shirts. They may also decide to sue the artist for breach of contract, since the contract guaranteed them the exclusive right to use that design, as well as for damages for the loss they take due to sharply reduced sales of products they have produced with your no longer fashionable design.
Without the deterrent of statutory damages and attorneys fees – and without a permanent injunction against repeat offenses by the same T-shirt seller, this experience would now act as an incentive for the infringer to exploit other uncredited (and therefore, effectively orphaned) images by other artists. Worse, the T-shirt manufacturer will discover that publishing ‘Orphan Works’ is a rational, profitable business decision, which could in turn inspire other infringers. It is bad enough that artists have to deal with infringement issues from China and other countries- they shouldn’t have to deal with it in America.
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ORPHAN WORKS OPPOSITION
to H.R. 5889 – The Orphan Works Act of 2008 and
S. 2913 – The Shawn Bentley Orphan Act of 2008
PRESS RELEASE
SENT: May 16, 2008
For immediate distribution and release
NEW COPYRIGHT BILLS WILL AFFECT EVERYONE
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 decades.”
Senate Bill S. 2913 and House Bill H.R. 5889, the Orphan Works 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.
To 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 art licensing 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.”
Copyright 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.”
Because 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.
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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
dcjones@ix.netcom.com
http://www.PRcollect.com