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

Boston Herald

New York Times

Key points of the bill as written by Joanne Fink:

1. The art licensing 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 Orphan Works 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:

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.

# # #

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

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!

Tags: Art Licensing, orphan works

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Posted at : May 22nd, 2008 - 6:05 pm
Filed under : Kristy Valshan
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