Orphan Works

Or, How You May Lose All the Rights to Every Piece of Art You Have Ever Created!

On April 5th, 2008, I interviewed Brad Holland of the Illustrator's Partnership about the Orphan Works bill and how it affects every artist and photographer in the world.

YOU NEED TO LISTEN TO THIS because you are about to lose your copyright protection. Every one of you needs to stand up and be heard in order to protect what we have all created.

Please forward this information to every creative person and group you know. I give permission for this audio file to be copied and transferred and replayed so that everyone may learn about what is going on.

CLICK HERE to DOWNLOAD the MP3 of this interview. E-mail it to others or put it on your iPod.

IT'S HERE!
The 2008 Orphan Works Act has been released to Congress
Click HERE to download the Senate version of the bill,
S 2913 The Shawn Bentley Orphan Works Act of 2008

Click HERE to download the House version of the bill.
The_Orphan_Works_Act_of_2008.pdf

Orphan Update E-mail Lists
Brad Holland
Illustrator's Partnership
[link]
illustratorspartnership@cnymail.com to get on the Orphan Works e-mail list


Register below to receive Orphan Works
information from Mark Simon

Name:
Email:


Orphan Info
IPA Orphan Works Resource page for more info:
[link]



Govt. Contacts
Contact your Senators, Representatives, Governors and State Legislators:
[link]
Sample Letter You Can Send
CLICK HERE to download a template (MS Word document) you can customize and fax, mail or e-mail (fax is best) to your Senator, Representative, Governor and State legislator.

Do NOT threaten or curse in any response you send to legislators or supporters of the bill. That will only hurt the cause! Once the bill is back on the floor, we will post information here on when it will be the best time to write letters.

How This Affects Other Artists
Interview with Alex Saviuk, famed Spider-Man comic artist about the Orphan Works bill.
CLICK HERE to download and listen to Alex's interview.







Below is the original Orphan Works article as a PDF file and as a Word file. Below my signature is the entire text of the original article or you can download a PDF or Word file version below.

I give permission for this article to be copied, sent and re-printed. Please help us spread the word.

The article may also be found on AWN.com.

CLICK HERE to download the PDF article

CLICK HERE to download the MS Word article


Please make yourself be heard and protect your own creations. This bill can't be defeated if we sit quietly in our home studios.

SUPPORT/RESEARCH/REBUTTALS
There are a few blogs out there who think I'm crazy and have not done the research. What I've seen is they haven't even fully read my article, so research this yourself and make an intelligent decision. See if others want you to learn more.

Also, be cautious of those who resort to name-calling when they dispute something. They often have no other way to attack. Some blogs have written that there is no Bill on the Hill. The bill has been written and is due out at any time.

I'll be posting more research here over the weeks, but you can go to [link] to learn more.

Below is a letter I got from Brad Holland of the Illustrator's Partnership further explaining some of the questions we've received and countering the myth that there is no up-coming Orphan Works bill.

FROM THE ILLUSTRATORS’ PARTNERSHIP


Orphan Works: No Myth


We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.


How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”



Q: There is no Orphan Works bill before Congress – one was introduced in 2006, but it was never voted on.
A: Correct. The last bill died in Congress because of intense opposition from illustrators, photographers, fine artists, and textile designers. The Illustrators' Partnership testified against it in both the House and Senate. [link]



Q: So if the bill is dead, why warn everybody about it now?
A: Because a new bill is due out momentarily. According to Andrew Noyes of the National Journal:


“Legislation aimed at reworking a portion of U.S. copyright law dealing with ‘orphan works’... will likely be a priority for the panel headed by House Judiciary Courts, the Internet and Intellectual Property Subcommittee Chairman Howard Berman, D-Calif., in the spring...


“American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,’” adding: “the House effort is ‘so close to being a done deal that we're on the edge of our seats.’" -Intellectual Property -Progress Seen on Developing 'Orphan Works' Legislation, by Andrew Noyes © National Journal Group, Inc. 02-21-2008



Q: But if there isn’t a new bill yet, how can we know what’s going to be in it?
A: Our information indicates the new bill will be basically the same as the old one. According to the Copyright Clearance Center:
“Subcommittee chairman Howard Berman made it quite clear that he intends to introduce new orphan works legislation shortly... It is likely the new bill will look very similar to The Orphan Works Act of 2006.”[link]



Q: But if it’s due out shortly, why not wait until it’s been introduced before we oppose it?
A: To quote from the Copyright Clearance Center:
“Since this is an election year, and re-election campaigns will be in full swing by late summer, new orphan works legislation will probably be fast-tracked to reach the floor of the House by mid-May”. [link]
Since that would give us only a month to notify artists, we decided to start now.



Q: Do we have any direct corroboration for these press reports?
A: Since the last bill died, we’ve met with:


- Chairman Berman
- Attorneys from the Copyright Office
- Representatives of the House and Senate Subcommittees
- A lobbyist for Getty and Corbis. (Getty and Corbis oppose the bill, but are negotiating for favorable concessions.)



Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries?
A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:


“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." [link]
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:




Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?

Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting


This exchange suggests that if Copyright Office proposals become law:


- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.



Q: What does it mean to say your copyright is an “exclusive right”?
A: Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered (emphasis added).”
[link]



Q: Why does this exclusive right matter?
A: Two big reasons:


- Creative control and ownership: No one can use or change your work without your permission.
- Value: In the marketplace the ability to sell exclusive rights to a client triples the value of your work.



Q: So how would the Orphan Works proposals endanger that right?
A: It would allow anyone who can’t find you (or who removes your name from your work and says he can’t) to infringe your work. Since infringements can occur anytime, anywhere in the world, they could be countless but you might never find them.



Q: So?
A: So:
- Under this bill, you would never again be able to assure a client that your work hasn’t been – or won’t be – infringed. Therefore
- You would never again be able to guarantee a client an exclusive right to license your work. This means
- Your entire inventory of work would be devalued by at least 2/3 from the moment this bill is signed into law.



Q: But the “orphan works problem” isn't just something dreamed up by evil corporations to steal your vacation photographs. It's an actual problem faced by academics, librarians, and others.
A: In drafting the 1976 Copyright Act, Congress weighed the issue of older works whose owners can’t be located. They concluded that the problem it created for users was outweighed by the benefits of harmonizing U.S. copyright law with international copyright law.


“A point that has concerned some educational groups arose from the possibility that, since a large majority (now about 85 percent) of all copyrighted works are not renewed, a life-plus-50 year term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...
“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making ‘fair use’ of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights (emphasis added).” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) - Quoted on pages 15 –16 and 41 - 44 of the 2006 Orphan Works Report [link]



Q: But the backers of the Orphan Works bill say it would merely amend the law to solve the problem of old work whose owners can’t be found.
A: It would solve the problem alright! But it would do so by making a potential orphan of any work by any artist, living or dead. This would be like trying to solve the crime problem by making everything legal.



Q: How would it orphan “any work by any artist, living or dead”?
A: As we testified before the Senate subcommittee in 2006: “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.


“ut simply, if a picture is unmarked, it’s impossible to source or date it. Therefore this amendment would orphan millions of valuable copyrights that cannot otherwise be distinguished from true orphaned works - and that would open the door to cultural theft on an unprecedented scale.” [link]



Q: But the Copyright Office says the infringer would first have to make a “reasonably diligent search” to find the copyright holder.
A: Yes, but last time, this opened a Pandora’s Box of problems. No one was able to draft a foolproof definition of a “reasonably diligent search” (remember that the infringer would have a serious financial incentive not to find you). So the Copyright Office proposed registries.



Q: Why registries?
A: Because a search of registries would allow the infringer to legally claim he had made a “reasonably diligent search.”



Q: And the problem with that is?
A: You can’t find a picture in a registry if it’s not there. Any picture – published or unpublished, professional or personal – that hasn’t been registered could therefore be orphaned by a successful orphan works defense - even if the artist was alive and otherwise managing his copyrights.



Q: But if you do become aware of an infringement, you can always claim a “reasonable fee” from the user.
A: Another Pandora’s Box because:


- Infringements can occur anytime anywhere in the world; therefore
- You would have to search every publication, every website, everywhere - on a regular basis - to see if anything you’ve ever done has been infringed.
- This would be an impossible task - but
- Even if you did find an infringement, you’d still have to
- Locate the infringer and get him to respond; and
- While the infringer would only have to make a “reasonably diligent search” to find you,
-You would have to make an absolutely successful search to find him.
- Then, if you were able to track him down and get him to respond, you’d have to
- Settle for whatever he was willing or able to pay you; or
- Take him to Federal Court; but remember
- If the court accepts the infringer’s claim that he made a reasonably diligent effort to find you,
- You’d get no more than what he was willing or able to pay you in the first place; but
-You’d be out-of-pocket for legal expenses; and
- There’d be no limit to the amount of damages and legal fees the infringer could get from you in a countersuit.



Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:


“Under current law, infringement cases follow two scenarios:
“Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn't have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.

“Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay - and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.

“Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”

Q: But the Copyright Office says that infringers who act in good faith need “certainty” that they won’t be penalized for using an “orphaned” work:


“Most [commenters to the Orphan Works Study] agreed that statutory damages and attorneys fees should not be available [to copyright owners] because those remedies create the most uncertainty in the minds of users (emphasis added).” - Page 7/Orphan Works Report [link]
A: Maybe so, but under this bill

-You would never have certainty because you’d never know if, when or where your work has been infringed.
- Yet the infringer would be guaranteed the kind of certainty the law would deny you.


Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:


1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:

Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).” [link]
2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.

3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.
4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.

5. There is no Copyright Bureau of Investigation; no Copyright Police Force.

6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.

7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So
8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.

9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because

10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.

11. This is a powerful incentive for a thief not to risk stealing our work.

12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.

Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.


The Dog that Didn’t Bark In 2006, visual artists banded together and flooded Congressional offices with faxes protesting the harm the Orphan Works Act would do to professional artists.


Lost in the swamp of debate over “reasonable searches” and “reasonable fees,” no one stopped to think that the bill had been written so broadly that the inclusion of unpublished work would expose even personal and private work - such as sketches, diaries, family photos, home videos, etc. to infringement. This issue was the dog that didn’t bark. The January 29 2007 exchange with the attorney from the Copyright Office finally woke the dog:
Carson: Copyright owners will have to register their images with private registries.

Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!

This radical expansion of the public domain makes this legislation much more than an issue of copyright infringement. Its unintended consequences would amount to a violation of private property and potentially, of privacy itself.


In a 2005 paper submitted to the Copyright Office, legal scholars Jane Ginsburg and Paul Goldstein warned that Orphan Works legislation must precisely define the scope of its mandate or fail to uphold our country’s commitment to international law and copyright-related treaties:
“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of ‘orphan’ works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time (emphasis added).” -Item 1/page 1 Orphan Works Reply Comments [link]

It may sound absurd to argue that the unintended consequences of this legislation will raise privacy issues. But the absurdity arises from the Copyright Office’s inversion of basic copyright law. On page 14 of the Orphan Works Report, the authors write:

“If our recommendation resolves users’ concerns in a satisfactory way, it will likely be a comprehensive solution to the orphan works situation (emphasis added).” [link]

Yet any law that permits users to commercialize the private property of others cannot be “comprehensive” if it “rejudices the legitimate interests of the copyright holders.” See Article 13/The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [link]

This includes unpublished work and personal expressions as well as works intended for commercial use. Authors’ rights are exclusive. Public interest cannot compel anyone – artist or private citizen – to publish his or her work. So by what right of eminent domain can Congress assert a sweeping right to let others publish it for them?



The Copyright Office has stated that they’ll regard their recommendation as “satisfactory” if it makes millions of copyrights, no matter how valuable, available to users, no matter how worthy, under a system that would introduce permanent uncertainty into the markets of professional creators and into the lives of ordinary citizens. By placing the wants of users over the rights of rightsholders, the Copyright Office would invert the simple logic of copyright law, which in 2006, one artist expressed very clearly this way:


"If you find a creative work, you may not know who created it, but you know you didn’t.”

Despite 127 pages of the Orphan Works Report, you need only common sense to tell you this: The primary goal of copyright law is not to make creators’ work available to others. If it were, there’d be no need for copyright law at all: everything would be free for anyone to use. Copyright law exists primarily to protect the property rights of creators and secondarily, to extend the benefits of the creator’s work to the public. It does this by defining specific, limited exceptions to the creator’s exclusive license. In doing so, the law promotes the useful arts and provides certainty to users and creators alike. Invert the law and you invert the only way it can benefit society.



- Brad Holland © 2008 with additional research by Cynthia Turner, for the Illustrators’ Partnership


The author has given his permission to post or forward this article in its entirety to any interested party.



Brad Holland is a self-taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone, the New York Times and other publications. He is a member of the Society of Illustrators Hall of Fame. His satire on the art business,”Express Yourself, It’s Later Than You Think” was first published in The Atlantic Monthly [link] “First Things About Secondary Rights” appeared in The Columbia Journal of Law and the Arts, published by the Columbia University School of Law [link]

Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.



For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
[link]
I also just received (April 17th, 2008) this e-mail from the ASMP:

Thank you for your passionate and informative article. You may be aware of ASMP's efforts on this subject. If not you can review what ASMP's council Victor Perlman has to say:


The last public statement from ASMP is on our website at [link]
A lot has happened since then. I expect a bill to be introduced within the next week or two that will incorporate most of the changes that we have been negotiating for.


Hal Gage
ASMP/Alaska member
Photographer/Graphic Designer
The ASMP site states: "It has become clear is that some Orphan Works law is likely to be passed sooner or later. Key members of the House and Senate want it; significant user groups such as museums, academic institutions and publishers want it; and the general public wants it."

Do you really need further proof that this Bill is pending and Congress intends to pass it?

YOUR SUPPORT
I am getting great e-mails from around the world, thank you. You are not alone in this fight, but every voice and every letter and e-mail count. Even those of you from outside the U.S. have a vested interested in this.

Yes, the changes here will affect you.

You may want to call or petition your representatives and ask them to pressure their U.S. counterparts as the U.S. laws will affect your income. International pressure will only help.

Louis from Kansas adds this information:

"Thanks for the heads up - also, are you familiar with the Berne Convention? It may give those wanting to make this bill pass pause for second thought. Other countries will not be bound to honor US Copyright if the US violates the Berne Convention (which this bill does on so many levels). Info on the convention can be found through WIPO: World Intellectual Property Organization."

What Else Can You Do?
Contact your local papers and send them this article. I give you permission to do it. Local papers like to write local stories. When you tell them about it, make it personal. Allow them to run samples of your art with the article. (It then becomes PR for you and they want great art in their stories. It's a win-win) Tell them how this bill will affect you and your business and my article supports your argument.

You can also call your local TV station news desk and suggest this as a story and that they can use your art. I will be glad to be interviewed with you if you like.

Call the radio stations in your area. They look for local stories too. Make it personal and they will pay attention. Again, I will be happy to be interviewed in a conference call with you if you like.

Good luck to us all.

Mark Simon
The Artist Advocate
marksimonbooks@yahoo.com




Mind Your Business
You Will Lose All The Rights to Your Own Art
Mark Simon

As you know, I usually handle the subjects in my articles with a sense of humor. That is not the case this month. I find nothing funny about the new Orphan Works legislation that is before Congress.

In fact, it PISSES ME OFF!

As an artist, you have to read this article or you could lose everything you’ve ever created!

An Orphaned Work is any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time or by lack of proper registration. Like when parents give up their child to be an orphan, you can give up ownership in your creative work to be an orphan for others to use without your permission.

If you don’t like to read long articles, you will miss incredibly important information that will affect the rest of your career as an artist. You should at least skip to the end to find the link for a fantastic interview with the Illustrators Partnership about how you are about to lose ownership of your own artwork.

Currently, you don’t have to register your artwork to own the copyright. You own a copyright as soon as you create something. International law also supports this. Right now, registration allows you to sue for damages, in addition to fair value.

What makes me so MAD about this new legislation is that it legalized THEFT! The only people who benefit from this are those who want to make use of our creative works without paying for them, or from large companies who will run the new private copyright registries.

These registries are companies that you would be forced to pay to register every single image, photo, sketch or creative work.

It is currently against international law to coerce people to register their work for copyright because there are so many inherent problems with it. But because big business, like Bill Gates, can push through laws in the United States, our country is about to break with the rest of the world, again, and take your rights away.

With the tens of millions of photos and pieces of artwork created each year, the bounty for forcing everyone to pay a registration fee would be enormous. We lose our rights and our creations, and someone else makes money at our expense.

This includes every sketch, painting, photo, sculpture, drawing, video, song and every other type of creative endeavor. All of it is at risk!

If the Orphan Works legislation passes, you and I and all creatives will lose virtually all the rights to not only our future work but to everything we’ve created over the past 32 years unless we register it with the new, untested and privately run (by the friends and cronies of the U.S. government) registries. Even then, there is no guarantee that someone wishing to steal your personal creations won’t successfully call your work an orphan work, and then legally use it for free.

In short, if Congress passes this law, YOU WILL LOSE THE RIGHT TO MAKE MONEY FROM YOUR OWN CREATIONS!

Why is this allowed to happen? APATHY and MONEY.

Artists have apathy and corporations have money.

We need to be heard in order to protect our incomes, our creations and our careers. GET OFF YOUR ASS!

That means writing letters to our congressmen and representatives. That means voicing your opinion about how we need copyright protection, as we’ve had since 1976, that protects everything we create from the moment we create it. Currently, your work is copyrighted as soon as it’s created, whether you register it or not. This is the case around the world.

However, an Orphan Works bill is also in the works in Europe. I was speaking recently with Roger Dean, the famed artist of the YES album covers, and he is greatly concerned with what will happen if Orphan Works bills become law. “This will devastate the livelihood of artist, photographers and designers in a number of ways.”

Dean continues, “That at the behest of a few hugely rich corporations who got rich by selling art that they paid no part in the making of, the U.S. and U.K. governments are changing the copyright laws to protect the infringer instead of the creator. This is unjust, culturally destructive and commercial lunacy. This will not just hurt millions of artists around the world.”

“On the other side of the coin,” Dean argues, “what argument will a U.S. court have with a Chinese company that insists it did its research in China and found nothing? If the cost of this is onerous for a U.S. based artist, what will it be like for artists and small businesses in emergent economies?”

If an artist, whose work is as famous as Roger Dean’s, is concerned with this legislation, it should be of great concern for all of us.

The people, associations and companies behind the Orphan Works bill state that orphaned works have no value. If that were true, no one would want them. However, these same companies DO WANT your work, they just don’t want to pay for it. If someone wants something, IT HAS VALUE. It’s pretty simple.

Some major artist and photography associations, or I should say the managers of the associations, support this bill. The reason they support is that they will operate some of the registries and stand to make a lot of money. Some have already been given millions of dollars by the Library of Congress. Follow the money and you will see why some groups support this bill of legalized theft of everything you have ever created.

Corbis and Getty Images have opposed the Bill but have a lobbyist in Washington who is negotiating behind closed doors for favorable concessions to them. They are large stock photo and stock art companies. They sell art and photos inexpensively and are trying to build giant royalty-free databases. Do you see how they could benefit from considering most art in the world orphans?

Do you know who owns Corbis? Bill Gates. He doesn’t do anything unless it can make a huge amount of money.

For years we’ve heard of Hollywood fighting with China to protect the copyrights and income for distributing feature films from pirated DVDs. Our government has worked with the film studios to protect their investment.

Individuals in our government are NOW WORKING AGAINST US by allowing our own citizens TO STEAL OUR CREATIVE WORKS.

It will be easy for them to get away with it unless we make ourselves heard.

Your calls and letters do work. I’ve been involved with many instances of a single letter making a difference in public policy. Tens of thousands of calls and letters help even more.

This is not empty talk. I have written letters to my congressmen and I will do so again. I do what I can to let every creator know about terrible legislation like this…thus you are reading articles like this one and you can listen to interviews I’ve posted online.

CONTACT YOUR LEGISLATOR:
Go to [link] to quickly find the phone number, address, e-mail of every U.S. Senator, U.S. Representative, Governor and State Legislator.

Forward this article to every creator you know and urge them to take a moment to protect their very livelihood. I am giving everyone the right to reprint this article in any form to help spread the word to protect our creative rights.

Instead of sitting around watching TV tonight, TiVo that show tonight, write a letter make yourself heard.

Letters to our government officials don’t have to be long, but they should be heartfelt. A good story helps. Tell them who you are, how this legislation negatively affects you and that you want them to vote against the Orphan Works legislation. It’s that easy!

If you don’t, you will have only yourself to blame when you see other people making money from your art and you don’t see a dime.

Spider-Man comic artist Alex Saviuk is also concerned about the loss of copyright protection. “When I found out all the negative aspects of the new legislation, it would almost behoove us to want to do something else for a living,” says Saviuk. “If we would have to register with all the different companies, we would never be able to make a living.”

“It would impossible for me to register all my art,” continues Saviuk. “It would put me out of business.”

You can listen to my complete interview with Alex online at [link]

Think this doesn’t apply to you? Maybe you don’t license your artwork? How about this?

Photos on the internet could be orphaned. With tens of millions of photos shared online with services like Flickr, Shutterfly and Snapfish, there is a huge opportunity unauthorized use of your photos…legally.

You could see photos you take of your family and kids or of a family vacation used in a magazine or newspaper without your permission or payment to you. You would have to pay to register your photos, all of them, in every new registry to protect them. Say the average person takes 300 photos per year (I take a lot more than that). If a registry only charges $5 per image, that is a whopping $1,500 to protect your photos that are protected automatically in the current laws. If there are 3 registries, protecting your images could cost an amazing $4,500. Not to mention the time it would take to register every photo you take. Plus, you will also have to place your copyright sign on every photo.

That’s not including all your art, sketches, paintings, 3D models, animations, etc. Do you really have all that extra time and money? Plus, even if you do register, the people stealing your work can still claim it was orphaned and unless you fight them, they win. Even if you win, you may not make back your legal fees.

It gets even better. Anyone can submit images, including your images. They would then be excused from any liability for infringement (also known as THEFT) unless the legitimate rights owner (you) responds within a certain period of time to grant or deny permission to use your work.

That means you will also have to look through every image in every registry all the time to make sure someone else is not stealing and registering your art. You could actually end up illegally using your own artwork if someone else registers it. DOES ANYONE SEE A PROBLEM WITH THIS?

Do you think the U.S. Copyright Office is here to protect you from this legislation? Think again.

Brad Holland of the Illustrator’s Partnership shares his notes from a recent meeting with General Counsel of the Copyright Office.

Holland: “If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?”

Carson: “Copyright owners will have to register their images with private registries.”

Holland: “But what if I exercise my exclusive right of copyright and choose not to register?”

Carson: “If you want to go ahead and create an orphan work, be my guest!”

This cavalier and disrespectful dialogue should have you seeing red. Who the hell does he think he is? Carson should be fired and RUN OUT OF WASHINGTON!

None of this could happen with our current laws. Our current laws work and they protect us and our creations.

The only people who will benefit from the copyright law change are those who can’t create work on their own or companies who stand to make a lot of money from using our works of art. They pay contributions to Congressmen, which is why they get what they want. We need to stand up and be heard. Every one of you needs to write your Senators and Representatives. We have to protect our livelihoods. It’s that serious.

Plus, the technologies being developed for locating visual art don’t work well enough. On March 13, 2008, PicScout, one of the softwares used in the registries, stated to the House IP subcommittee:

“Our technology can match images, or partial information of an image with 99% success.”

A 1% margin of error is huge when you consider the millions of searches performed for art every day. That means for every million searches, 10,000 images could be orphaned.

Plus, this only takes into account images registered on their system. If you have registered all your work on another system, they won’t be searched here and even though you may have spent thousands of dollars registering your creations, a new or unused directory could orphan everything you’ve ever created.

This is just one of the many reasons why INTERNATIONAL LAW FORBIDS COERCED REGISTRATION as a condition of protecting your copyright. The United States is about to break international law by making us register our works. The people behind the bill say it’s not forced registration, but you won’t have any rights unless you register. THIS IS SIMANTICS! Of course, this is forced registration and we can’t stand for it!

There many, many other problems with the Orphan Works legislation. As a creator, YOU MUST understand what is going on.

For additional information on Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists:
[link]

This is not something that is going to go away easily. We need to be vocal NOW!

This legislation has been beaten or delayed for the past 2 years and they will keep trying until it passes. This is no time to be quiet and see what happens. What will happen depends on you. Send e-mails and call your congressmen. Ownership of your own creations depends on it.

Roger Dean sums this up well, “Where are the colleges and Universities in all this? Has the whole world gone to sleep?”

GET ON ORPHAN WORKS E-MAIL LIST:
To be notified of the latest information on the Orphan Works bill and when we should contact our legislators, send an e-mail to illustratorspartnership@cnymail.com and ask to be added to the Orphan Works list.

AUDIO INTERVIEW LINK:
I have recorded a fantastic interview with Brad Holland of the Illustrator’s Partnership regarding this bill and what it means to us as artists. Please go online to [link] to listen and learn more about how you may lose ownership of all your art and photos. This article and the recorded interview are available for anyone to use in any print or on any website. Please forward this information to every person and group you know so we can work together and protect our creations and livelihoods.



Mark Simon is an award-winning animation producer/director and speaker. He speaks around the world on subjects about art, animation and tv production. His copyrighted companies may be found online at [link] and [link]. He may be reached at marksimonbooks@yahoo.com.

Portions of this article use information and phrasing provided by the Illustrators Partnership.



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