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!

There is now a petition you can sign to oppose the orphan works bill that Jeanine mentioned in her last post.

Please take a moment and sign this petition. This is incredibly important to the future of all of us.

http://www.thepetitionsite.com/tell-a-friend/369030

Thanks for your help and support!

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.

******************************************
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?

For a limited time, download our two Quickpage pack from the new Kristy Valshan Calista Collection for FREE!

DOWNLOAD EXPIRED

Well it is about time right? We have a new kit up in the store called “Calista“. It was really fun to design - kinda freeing in a way. We tend to design project-specific and this one was just “design”. We used a really trendy color palette and some cute birds to boot! Hope you like!

And, if you want to grab it on the cheap PLUS get a free quick page AND be entered into a drawing for the kit, we will share a secret. Head on over to visit Candi and Erica at the Scrapbooks Etc. Magazine Digital Scrapbooking Blog and look at today’s post!! Woo hoo!

Here is a peek at the kit (papers and elements are sold separately)…

Jeanine and I are still recovering from our trip to Anaheim. We are usually so bad about posting photos so Jeanine posted a few directly to facebook while we were at the show. I thought I’d put some up on the KV blog to share too.

This was the first time we ever exhibited anywhere. We were really happy with the overall response we got on our booth. We had a great time and are excited about following up on all the opportunities open to us!

We’d like to give a HUGE thank you to Melinda Staley who created all the bags you see along with all the Yuletide goodies (ornaments and wall hanging)! We also used several of our CT’s layouts - some on the wall and a lot in our books. Thank you ladies!!

Okay… on to the photos…. This photo was taken on Saturday after we setup the booth. We had GES come hang our back banner and the rods on Friday. We got a lot setup Friday night but came back to finish up the loose ends on Saturday afternoon.

The booth without us in it. lol!

Some close up photos…

And opening day!

We also participated in the designer showcase again. This time we did a simple table with just a banner and portfolio items.

Tomorrow morning Jeanine and I will be off to CHA! So much has happened in this past year for us… all good things!! This year we are exhibiting in the License & Design section. If you are attending CHA, please stop by and say hello to us! We are in hall C, booth #2991.

We have a few new collections and a new spin on some old goodies too! Here is a sneak peek at some of the goodies we’ve prepared for our booth….

Melinda Staley prepared these for us… awesome work!!

We are very excited to announce that our first “brick and mortar” scrapbook products are out in stores NOW! Archivers is currently stocking two Kristy Valshan scrapbook album kits.

And of course, we had to take some photos! Jeanine was out in Chicago for Thanksgiving and so the two of us took a trip to Archivers to check out our products in store!

In this particular Archivers, they stocked The Journey set on their album table. The Traveler set was hanging on a wall display by the cash register (so we didn’t get a photo of that)… yes we were sneaky… lol! And it pays to be the one holding the camera so you aren’t the one in the silly photos! lol! Sorry Jeanine…. but I thought this was a great photo and had to post it.

Here are some up close photos of the physical product.

The Journey 12 x 12 Album Set

We got to design the packaging too! Yes, those are my girls in the layout.

8 x 8 Traveler Album Set

And these are Jeanine’s cuties!

And you might be thinking…. what does a digital scrapper need with physical product? Well that’s simple! With a Kristy Valshan album, you can print your digital layouts and put them in the coordinating album.

For each physical product we release in the stores (and there is more to come!) we are planning to release a coordinating quick page set and possibly some additional papers. You’ll be able to mix-n-match digital KV with physical KV products!

We are probably being silly with all of this but we just had to let you all know how excited we are to be able to bring the Kristy Valshan scrapbook line to retailers near you!

Jeanine and I put together this quick card sampler just for you! The sampler pack comes with 3 4″ x 8″ cards and a little frame template to create your own card.

 DOWNLOAD EXPIRED 

If you haven’t signed up for the Kristy Valshan newsletter yet, what are you waiting for?

When you sign up, you’ll receive this little sampler FREE!