I 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?

Basically…

FROM http://www.illustratorspartnership.o…archterm=00265

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.”
The 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 possibly collect.
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 free, pass.

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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 feedback.)

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 incredibly powerful.

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)

PLEASE PASS THIS ON TO EVERY ARTIST YOU KNOW!

What do you all think?

Tags: Art Licensing, copyright, orphan works

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Posted at : April 28th, 2008 - 3:33 pm
Filed under : Kristy Valshan
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