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Sep 29

Orphan Works Emergency – Don’t let your artwork become Orphans.

URGENT! Read the whole post at Ms. Dorans blog and go and TAKE ACTION to protect art and artist from being abused! I am just going to Quote some of Colleen Doran, since she has summed it up so well as to the reasons the new bill will hurt us artist. Visit here blog to read the whole thing.

“Worst case scenario: the Senate has passed the Orphan Works Bill and the wording of the Senate bill is even more hideous than that of the House bill. The bill is not law, but may become law if we all do not act now.

That this bill was hotlined without open debate during a financial crises speaks volumes about the nature of this bill, and of those who support it.

Here is a direct link for writing your Senators and Congressman.

Concerned persons outside the US should also be sure to sign the petition and contact US legislators as the nature of the bill will also effect your copyrights.

You will no longer have the same copyright protections when you create your works. Without being listed in a database for which you will probably have to pay, your work may be considered “orphaned”, and the copyright infringer will be in the position of deciding the “fair rate” to pay you for use, assuming you ever find out your work was stolen. Oh, excuse me, “used”.

The infringer must conduct a “reasonable search” to find the copyright holder, but the bill doesn’t specify what all that means. And how one can prove one made that search. Documents? Which documents? How? Google?

Apparently, if you didn’t make a diligent effort to find the copyright holder, you aren’t protected by this bill, but what the heck is a diligent effort?

“…reasonable under the circumstances…”

Whew, I’m glad we cleared that up.

Considering how easy it is to alter works in Photoshop and re-post them to the internet where those works are passed around the world in minutes, making an orphan out of any work of art is simplicity itself.

What is even simpler is realizing that if you didn’t create it, it isn’t yours in the first place. Don’t use it. Duh. — (Brians bolding)

The normal copyright rules will not apply to infringers who take advantage of this bill. The creator will not be entitled to statutory damages for copyright infringement under this law, and the specifics of the costs of those damages will make it impossible for almost any artist to seek remedy in court. Moreover, there is no way to find out who has searched this non-existent database and what images have been listed as “orphaned”.

There will be no way to collect fees to cover the costs of legal remedy, in many cases. If an infringer decides your work is worth $1,000 (if they say that is “reasonable” and the wording of the law keeps repeating the word “reasonable” as if that means anything), then the amount you may collect will be limited to “reasonable” – that “reasonable” $1,000. Which may very well be “reasonable” to the person who used your work, but not so reasonable to you. This is a law which puts the person or organization which took your work without permission in the position of telling you how much that art is worth. Most artists will not be in a position to fight a copyright infringement where they will not be able to collect statutory damages to cover legal costs.

This law should be limited to academic use, museums, and libraries, and should in no way confer orphan works status to anything that will be used for commercial purposes. It is not only unworkable, it is monstrously inequitable, and it is a gross violation of the Berne Convention.

Am I the only person who thinks the concern over the use of these works in museums, libraries, etc. could have been dealt with by a clarification in the already existing Fair Use Statute?

An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, museum, library, archives, or a public broadcasting entity (as defined in subsection (f) of section 118), or any of such entities’’ employees acting within the scope of their employment…

OK, that works for me. But this law doesn’t just make butterflies dance and unicorns glow for libraries, it makes copyright infringement a lot easier for commercial usurpers and it makes compensation for commercial use a lot harder to collect.

It’s hard enough to collect from clients with whom we have contracts! How to collect from people we never heard of? In another state? Another country? Since this law will forbid the creator from collecting statutory damages on infringement, the creator is stuck accepting whatever crumbs the infringer wants to dole out. There will be no way for many artists to afford to seek remedy across state lines.


“But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission.”

That’s one heck of a dopey strawman argument Senator, but I have yet to witness legions of photographers descending on photo restoration businesses to stop grandmas across the nation from restoring their shots, nor have our courts been clogged with petty arguments over the antecedents of the faded snaps in the family album. It also makes me question whether or not Senator Leahy understands that the copyright on Grandma’s photo from three generations ago has, likely, already expired. You’d think the Senator who is behind this bill would have considered that.

The reason everyone is fighting over the images are the millions/billions in ad sales resulting from the online searches…Google is the current leader and is now courting Yahoo themselves. Besides the millions or billions of dollars that would be generated from the ad sales, these giants will also make additional money off registration and searches as well. “Companies that create no content of their own, and make money solely on the backs of other people’s content, are raking in billions through advertising revenue and IPOs. Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. ” That sounds familar…. & ( )

Google is hooked up with Getty (images sales again) and AOL (Shawn Bentley went from the US gov. to work for time warner – owner of AOL – as VP of IP and Global Public Policy after he worked in the senate and “helped write are among the most important laws in the intellectual property world: the Satellite Home Viewer Improvement Act; the Digital Millennium Copyright Act, the American Inventors Protection Act, the Patent Fee Integrity and Innovation Protection Act, the Anti-Counterfeiting Consumer Protection Act, and the Trademark Dilution Act, just to name a few.”

How will the database work? Who may register and use it? Is it a public database or a private database? Will images appear as thumbnails, or will entire pages of work be posted large enough to make image piracy even easier than before?

And say, if these registries will be in a position to make advertising money off searches for our work, I’d like to be in a position to make royalties off those advertising fees. Howzabout requiring Google and other searchable databases to pay into a royalty fund to be divided among authors and artists? Similar to the library royalty scheme paid to authors in England?

How’s that for fair, Google?

Just sayin’.

Why don’t they just call this law by its true name? Copyright Squatting.

I spent many months fighting this bill, and I spent hours writing this post.

And now I’m going to cry.

Groups Opposing the Orphan Works Bills as Written

by Artists United Against the U.S. Orphan Works Acts

September 22, 2008

The following organizations oppose H.R. 5889, The Orphan Works Act of 2008 and S. 2913, The Shawn Bentley Orphan Works Act of 2008 because each bill permits, and even encourages, wide-scale infringements while depriving creators of protections currently available under the 1976 U.S. Copyright Act, the Berne Convention for the Protection of Literary and Artistic Works, and the international TRIPs Agreement.

American Society of Illustrators Partnership

• The Illustrators Partnership of America

• The Society of Illustrators New York

• The American Society of Architectural Illustrators


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