Orphan Works Bill information from the Graphic Artist Guild

Thanks to artist Colleen Doran we have some more information. I think this sums up both some pros and cons of the bill. The idea of having a bill to deal with Orphan Works is not the issue as much as some of the other items that accompany the bill. This is from the folks at the Graphic Artist Guild who are focused on protecting the work of professional artist. BOLDING BY ME.

——–Press release, in its entirety.———————————————–
Graphic Artists Guild Opposes Senate Orphan Works Bill

NEW YORK – The Graphic Artists Guild’s Board of Directors voted unanimously Friday to oppose the Senate’s passage of the Shawn Bentley Orphan Works Act of 2008 that significantly alters copyright protection rights. The Guild says the bill approved by the Senate Judiciary Committee is incomplete legislation, insufficient protection and indifferent to American workers.

The Guild has been advising members of Congress about the “orphan works” issue since 2006 and participated in discussions with the Copyright Office since 2005. The Guild withheld comment about the Senate bill until work was finalized. That position changed when the completed version was announced only hours before the Senate committee vote last Thursday.

“This is a disappointment,” Guild President John P. Schmelzer said, “We’re encouraging creative people from all industries to contact their senators to express their disapproval before the full Senate vote later this year.”

Orphan works legislation is intended to limit monetary rewards and injunctive relief to stop further infringement of copyrighted works for which the user has been unable to determine the identity of the copyright owner. The Guild and the artist community are concerned that the manner in which the limitations are imposed could produce an incentive for theft in the highly competitive industry that contributes $13 billion a year to the U.S. economy.

Guild leadership was pleased that lawmakers agreed with their recommendation to exclude artwork used on “useful items” such as textiles or wallpaper from being subject to the bill, but they say the measure otherwise has a long way to go before sufficiently protecting copyright owners.

The bill is incomplete because three key provisions the Guild sought to protect artists were left out. At the center of the controversy are the “best practices,” “database certification” and “notice of use” clauses.

When artwork is being considered for use but the artist’s identity is unknown, the bill’s provisions state the user is to attempt to locate the artist by following the best practices outlined by the Register of Copyrights. These practices have not yet been drafted however, and the bill will go into effect prior to their adoption.

The bill also references a database that’s supposed to make the search for copyright owners possible, but no such database exists for graphic, pictorial or sculptural work. There are no plans for the Copyright Office to create this database, and Congress cannot mandate one be made by a private company. In this case, no matter what best practices the Copyright Register might determine are appropriate for finding a copyright owner, the capacity to do so is not possible at this time.

The Guild proposed a further compromise that the legislation include a publicly accessible “notice of use” filing statement. This provision requires an individual or organization to submit a copy of the visual work believed to be orphaned to the Copyright Office prior to using it.

The Copyright Office would then post the filed information on the Internet so copyright owners could review the website and self-identify themselves as the owner. The virtual “lost and found” department would additionally ensure bad actors could not falsely assert they fulfilled the diligent search requirement of the law prior to using copyrighted work.

The Guild says copyright law was established to protect the creative community that made America the inventive capital of the world. The bill in its current state does too much to protect the interests of possible infringers and reduces protection for creators. The measure is indifferent to artists because it fails to take into consideration the long-term effect to the income potential for a workforce whose yearly median income is only $39,900 according to the Bureau of Labor Statistics. People who use artistic works, such as advertising and promotion managers, make a median average of $73,060 per year.

Guild Administrative Director Patricia McKiernan says the group will remain engaged to resolve these high priority shortcomings of the legislation.

“Copyright protection is an important issue for our membership and the economy they serve,” McKiernan said. “When anyone’s economic rights are reduced, it has enormous implications for the country as a whole. We will remain steadfast for the artist’s interests and this important industry.”

Write to the US Senate about the Orphan Works Act now!
Take Action!

Urge the Senate to protect creators’ rights on S. 2913

“The Shawn Bentley Orphan Works Act of 2008″ S. 2913 has passed the Senate Judiciary Committee, and has now moved to the full Senate for a vote. We were unable to achieve significant changes to the bill to better protect the rights of visual creators and rights holders.

Now is the time to write to Senators. The bill may still be amended while under debate of the full Senate. Write to Senators and urge them to amend the bill, and ask them to vote against the bill if it is NOT amended.

Click on this link for a sample letter to use. You may also personalize your own letter. The letter will automatically be emailed to the US Senate. We recommend you also print out the letter and mail it.

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4 comments... Thanks!

4 Comments so far

  1. Curtis Square-Briggs May 21st, 2008 4:16 pm

    I finally got my un-Law-degree, complements of CrackerJack Co. All I can say is I guess I’m a copyleftist. The old saw that copyright protects and inspires innovation falls flat to my ears. I can’t think of a single innovation that wasn’t built on the backs of previous works. Culture is a growing living thing. I really doubt Colleen Doran would be economically hurt by this bill. Oh wait there is that huge market just waiting to happen for pirated copies of distant soil! In a medium like comics where the printed stuff is ignored by most of the culture and there is more and more creators distributing their stuff online with a donation/ad business model, the obvious enemy of the creator is someone making copies without your permission . . . sure.

    I guess that’s just the way I feel about the copy-rightwing in general though.

  2. Jon Sloan May 21st, 2008 7:48 pm

    Mr. Square-Briggs, don’t you at least understand why people are in such an uproar? It’s pretty plainly spelled out that the vagueness in the language leaves too much room for loopholes as well as leaves too much room for future legislation that might destroy what rights we do possess as copyright holders.

    This is about outright theft of people’s property! Yes, I know noon is salivating, waiting for the chance to gobble up my obscure mini-comic, but I want to know that the process I went through to get my work protected will come through for me as well as anyone else it is supposed to protect. This is about protecting our ideas, certainly you cannot dispute that this isn’t important!

  3. Curtis Square-Briggs May 22nd, 2008 11:40 pm

    It’s not a question of anyone’s work not being ‘worthy’ of protection, but I feel that from what I read the changes to laws will have no fundamental effect on your or anyone else’s ability to make money and retain control of your works as an artist.

    Any money made by someone ‘pirating’ any work of art is very obviously money the original artist wouldn’t have made in the first place. Are they offering it cheaper than you are? Then they are tapping into a market that wasn’t going to buy your stuff anyway because of the price. Are they getting it for free? Well then they weren’t going to buy it anyway, and maybe they will buy your next book, or the signed hardbound edition. So they downloaded your music? Great, you’ll make more money selling t-shirts at the concerts where there will be more kids singing your songs than there would have been. Are they making their own t-shirts? Awesome, they love you enough to put that much sweat and work into it and that means when they do get the chance and have the money they’ll probably try to give you some. What is really worth something isn’t those stupid copies in whatever medium you disseminate your art through, it’s you the artist, and your fans. No one can steal that from you.

    I don’t blame you for feeling worried and I respect your opinion, but I firmly disagree with the very premise of most of the rhetoric being used to rile everyone up on this issue. What I believe to be the most important part of copyright law is the protection you get in say a personal business relationship. Let’s say you have a publisher, unless you sign a contract otherwise (which most people end up having to do anyways, because most artists have little bargaining power at the negotiating table) it protects you from them just going, hey this book is awesome, yeah alright I’ll publish it and turning around and selling it and not giving you any money. They have to get you to sign away your rights. This law as far as I can see will not change this. There is no way that they will be able to then turn around and say that your work is orphaned and that they had no idea you were still alive and owned it. The same way that you can’t walk into your neighbors house and leave a dollar on the table and steal their lamp, saying oh I thought they were dead and this was the estate sale, this lamp was ‘orphaned’. This law has absolutely nothing to do with that. This only protects the infringer if they can prove that they thought it was an orphaned work. You can’t easily orphan a work, one of the easiest ways is to die. I don’t see this changing the framework that established what the meaning of an orphaned work is. You retain your copyright from inception until so many years after you die, unless you very specifically assign someone else those rights or give them up. It isn’t so magical and mysterious. No one is going to be able to flip a switch and ‘orphanize’ your works. They could write up a contract and forge your signature, but that would be illegal, and they could do that right now if they really wanted. How is this about the ‘outright theft of peoples property’? In my mind, the outright theft of people’s property is still clearly protected as it has been buy copyright law. This just limits the penalties for people that can prove that they truly believed the original owner was not around and that they did a diligent search for them.

    In fact I think this would have a large impact on something like vintage stock film footage, where whole libraries of stuff is owned by companies that do not advertise their ownership of these little clips. If you are a documentary film-maker, after doing a diligent search, do you take the gigantic risk of using some footage that you can’t absolutely prove who owns it? Not as the law stands now, you could be on the hook for outrageous penalties. Do you think that is good for our culture? Do you think this sounds fair: that some company that bought up the rights to film libraries, that had bought the rights from other companies that bought the original source material dirt cheap because they were in a position to buy something from an artist who had 3 minutes of octopi on the sea floor footage that there really wasn’t people lined up around the block to buy it from them anyways so they signed over their rights. And when the corporate entity owns it, now it’s terms can never die, unlike a human artist (a la Mickey Mouse). So now they own this piece of footage that cost them almost nothing, they sell and resell the rights to use it but don’t really care if everyone can easily find them and buy the rights. Some poor sop, thinks that no one owns it and uses it for a non-profit piece about protecting the oceans and is summarily sued for 40 million dollars. The damages that can be sued for are astronomical and completely absurd, imbalanced against individual artists towards large companies. Does that sound fair? Reasonable? Does that ‘infringer’, that horrible thief deserve to work the rest of their lives as slave to a debt they can never repay? I mean how dare they!

    I don’t understand, how does this undermine artists ability to protect their work? Is it really possible that people will start using this to wrongfully pronounce that people have died or somehow left behind their works and it’s a free for all? I don’t see how that could happen, but I could be totally wrong . . .

  4. Jon Sloan May 23rd, 2008 7:33 pm

    If there’s one thing I’ve observed about people, it’s the fact that they continually outdo themselves in how low they will stoop or how far they will go to achieve their own selfish ends.

    If a non-prof. wants to use my pictures, they can ask and I will take the steps to help them. However, I will object to letting a (as of yet non-existant) for-profit database with little to no parameters supposedly protect my work, as well as having to jump through even more hoops to register my work for said database to essentially take the copyright law away from the government, and be governed by private interests (i.e. multimedia corporations).

    I know full-well my comic doesn’t come close to what might be considered a target for this issue, but I want the law that protects my property to stay where it belongs….within the government, not in the hands of someone who will try to squeeze me financially for every piece of work I’ve ever done, just so it can be protected.

    This also break down to another underhanded way to privatize copyrights as well as give more power of compensation over to the person who has done the infringing. Either way, the creator is getting the shaft if this continues.

    There are no definitions as to what constitutes a “reasonable search”, so that opens up more opportunities for people right there. This bill needs to be taken back to the people who drafted it, and tell them that they need to be specific and concise with their objectives before it can be considered….but then again, that makes too much sense.

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