Using intellectual property laws (as Monsanto did to take control of seeds worldwide), someone is pushing a law to say that "orphaned" artists' work is okay to use by others.
I don't see a lot of artists out there asking for this bill or any big flood of poor orphaned art work which can't find it proper owner. But there are new digital registry companies which will benefit because unless artists pay to get their work registered digitally, it is open to total use by anyone claiming they couldn't locate the artist.
http://capwiz.com/...
The proposed letters (and there are a few included in the link above, has this as an introduction:
As a constituent, a visual artist, and a small business owner, I am writing to express my grave misgivings about H.R. 5889, The Orphan Works Act of 2008. I strongly oppose this bill.
I would like to make it clear that I am not opposed to usage of orphan works by the cultural heritage sector for noncommercial purposes, or use by museums and libraries for preservation and education. But this legislation makes no limitations for these purposes, and will dangerously expose my art to infringements while stripping me of any practical means to protect my work.
Different versions of letters stressing various insanities in the bills, follow.
BULLET POINT LETTER
The Orphan Works Act has the potential to do great harm to those of us who create intellectual property. It is based on the Copyright Office’s study of orphaned work - yet the authors of that study have exceeded their mandate by extrapolating a widespread failure in commercial markets. This is an area which they never studied. If the intent of this bill is to find a way for museums, libraries and other not-for-profit institutions to legally exploit the creative work of authors who are hard to find, the authors should not rely on undocumented assertions about markets in which they conducted no studies.
For the record, I am alive, working and managing my copyrights. I can be located. I take steps to make myself accessible. Yet this law dictates that if any user fails to find me, that constitutes a market failure. No, that constitutes a human failure. Clients who work in my markets find me all the time.
This bill would expose countless works like mine to abuse. It would endanger any form of visual art - from professional paintings to family snapshots. It would affect any picture ever put on the internet. Visual art is especially vulnerable because an artist’s work can be published without his signature or credit line, or because credit lines can be removed by others. The widespread orphaning of images will harm not only artists, but all who work in collateral small businesses such as artists representatives, directories and source books, web site designers as well as all those industries which license art and anyone in the image-making public.
In the interest of brevity, I’ll list some basic objections I and other copyright holders have to this bill.
• The bill is written so broadly its use cannot be confined to true orphaned work.
• It would permit an infringer to determine when he or she has made a “reasonable effort” to locate me - even though the infringer would have a financial interest in not locating me.
• It would be retroactive, which means I would be penalized for not complying with laws which didn’t exist at the time I did the work.
• It would expose my future work to infringement immediately upon creation, even though I am alive, in business and managing my copyrights.
• It would place an impossible burden of diligence on me to protect my work, because infringements can occur anytime, anywhere in the world.
• It would force me into court to contest the diligence of an infringer’s search for me, yet it would remove any meaningful remedies for infringement.
• This means I would lose the only means the law gives me to enforce copyright compliance.
• It would force me into court to prove the value of my work, after the work had already been infringed and my exclusive right of copyright was lost;
• Yet it would limit “reasonable compensation” to whatever sum an infringer had established as a market rate for his use of orphaned work.
• By “limiting remedies,” the bill guarantees that the cost of suing an infringer could exceed whatever sum I might recover in a successful court action.
• Yet it would set no limits on the amount an infringer could win from me in a counter suit.
• It would deny me injunctive relief in situations where the entirety of my work has been used in a so-called “transformative” work.
• Which would be a gold mine for infringers, who could harvest “orphans,” re-cast them as derivatives, then copyright the derivatives.
• At present, the law does not allow infringers to claim my work by infringing it, but this bill would let them.
• This bill would rob me of my exclusive right of copyright, which in the marketplace triples the fee I can get for one-time usage.
• This means my entire inventory of work would be devalued by 2/3 the moment this bill takes effect.
• This bill would prevent me from restricting the use of my art on cheap or distasteful products or on products competitive with my paying clients.
• And it could drive my work into low-end markets where I would otherwise never license my work.
• While the bill would not legislate “registries,”it would have the same effect, by exposing to infringement the work of artists who don’t impose registration on themselves.
• This would force me to pay protection money to businessmen to keep something I’ve created myself.
• This would violate existing copyright law, which says “[Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.” (Emphasis added) http://www.law.cornell.edu/...
• It would force all visual artists to expose our lives’ work to infringement to subsidize the start-up of commercial registries.
• These registries would rely on image-recognition technology, which is still in its infancy and not reliable.
• Also, no registry will be meaningful until all pictures which anyone wishes to protect have been registered.
• Otherwise, any picture not found in a registry will be considered an orphan by users wishing to document a “reasonably diligent search.”
• This means commercial registries will actually orphan copyright-protected work.
• Which means the bill will have the opposite effect to its stated intent.
To sum up, the Orphan Works Act exceeds its mandate by promising to make orphans of any work whose author any infringer fails to find.
• It fails to properly define the category of orphaned work.
• It sets the infringer’s bar of due diligence so low it guarantees abuse.
• It would force into the courts countless business decisions which should be made in the marketplace.
• It creates problems which do not now exist, but which would require the expansion of the Federal judiciary system to solve.
RADICAL DEPARTURE FROM COPYRIGHT LAWS:
If enacted, this bill would force every person who creates any visual image - from a professional work of art to a family snapshot - to register every picture with a for-profit commercial registry or else risk seeing it exposed to commercial infringement by anyone who can successfully claim an orphaned work defense. This is a radical departure from any existing business models or practices in the field of copyright.
How can government force me to pay others to protect something I made myself? Under this legislation, I would have to submit a copy or copies of every picture I ever make– whether personal or professional - to as yet-to-be created private registration companies that would use untested technologies to scan images submitted by unlicensed users. These users would then be excused from any liability for infringement unless I responded within a certain period of time to grant or deny them permission to use my work.
This radically abridges the fundamental principal of exclusive rights granted to everyone under the copyright law. Why does this matter to me?
• Creative control and ownership: No one can use or change my work without my permission.
• Value: In the marketplace my ability to sell exclusive rights to a client triples the value of my work.
The Orphan Works Act would end that exclusive right because
• It would let anyone who can’t find me (or who removes my name from my work and says he can’t) to infringe my work.
• Since infringements can occur anytime, anywhere in the world,
• My work could be stolen countless times, but I might never find out about it.
• That means that under this bill, I would never again be able to assure a client that my work hasn’t been – or won’t be – infringed.
• Therefore I would never again be able to guarantee a client an exclusive right to license any of my work.
• This means my entire inventory – my life’s work - would be devalued by at least 2/3 its potential worth from the moment this bill takes effect.
As I understand it, the government cannot make me publish my work. So by what right of eminent domain can it pass a law to let others publish it for me?
The fatal flaw of the Orphan Works Act is that it has been written so broadly its use cannot be confined to true orphaned works. As a result, it will legalize the infringement of countless valuable copyrights that cannot be distinguished from abandoned works. All visual imagery is vulnerable to abuse because
• Most images are published without attribution - in spite of the wishes of their creators
• Feckless or unscrupulous users can remove credit lines, orphaning nearly any work of visual art through no fault of the artist.
Under the Orphan works Act, publishers will be less likely to pay for commissioned artworks if they can surf the net for free orphan works. That means my pre-existing work– orphaned through no fault of my own – would be competing against me for the new commissions I need to make a living.
The bill says if I become aware of an infringement, I can always come forward to claim a “reasonable fee” from the user. That may work in theory, but since Infringements can occur anytime, anywhere in the world, here’s how it would work in real life:
• First, I would have to search every publication, every website, every registry everywhere - on a regular basis - to see if anything I’ve ever done has been infringed.
• This would be an impossible task – but
• even if I did find an infringement, I’d still have to
• locate the infringer and get him to respond; and
• while the infringer would only have to make a “reasonably diligent search” to find me,
• I would have to make an absolutely successful search to find him.
• Then, if I were able to track him down and get him to respond, I’d have to
• settle for whatever he was willing or able to pay me; or
• take him to Federal Court.
• In court, it would be my burden to prove the “reasonable” amount to which I would have agreed to let him use the work - if I had agreed to let him use it in the first place.
• And to prove that, I’d probably have to hire expert witnesses to perform analyses, write reports, and testify in depositions and trial.
• But if the court accepts the infringer’s claim that he made a reasonably diligent search (whatever that would mean in any specific case),
• I’d get no more than what the infringer was willing or able to pay me in the first place; but
• I’d be out of pocket for legal expenses; and
• there’d be no limit to the amount of damages and legal fees the infringer could get from me in a countersuit.
• And to top this all off, everywhere the infringer’s publication has reached, my work would still be out there as an orphan for others to infringe again.
The Orphan Works Act/Sec 6 (a) says that the Copyright Office will be directed to study the feasibility of creating alternate means of resolving disputes after this bill has been passed. This is frankly preposterous!
• First, where is the logic of driving business decisions into the courts?
• Second, if Congress is determined to replace voluntary business transactions with enforced litigation, shouldn’t the means of resolving these unnecessary court cases be proved feasible before a law is passed to make them necessary?
• Third, how can courts or their “alternatives” determine the facts of a contentious infringement case without the tools of discovery, deposition, cross – examination, etc.? They can’t, so abuses will abound.
Almost all visual artists such as painters, illustrators and photographers are self- employed. We work alone without the kind of marketing, administrative and financial support provided to other creators by publishers and film studios. We receive no salaries, do our own marketing and have no administrative support. Yet we supply much of the visual material that makes up our popular culture.
Under the proposed legislation only a handful of us (and probably not I) will be able to hire expensive law firms and pay the costs of digitizing and privately registering thousands of images. That means we’ll have little chance of protecting ourselves from predatory commercial infringers.
I am told that the Copyright Office conducted a study of Orphan Works and that this bill is based on that study. I understand that an orphan work is a work whose owner cannot be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?
What if 10 people can find me but one can’t? Why should that one person get a potentially free pass to use my work? Won’t that give infringers an incentive not to find me? And why should I be obligated to go into court to prove anything about the diligence of the searcher or the value of my work? What if the same work is found an orphan in one legal proceeding and not in another?
I believe my work benefits the public by being published through the channels where I wish to publish it. The current copyright law works by giving me the incentive to keep doing this. Please protect this basic property right.
GOLDMINE FOR OPPORTUNISTS:
My chief objection to this legislation is that it will be a gold mine for opportunists. It will allow bad actors to infringe the work of any visual artist, even those who are alive, easily locatable to their clients and actively licensing their copyrights.
It will force anyone who creates a visual work, personal or professional, published or unpublished, to register it with money-making commercial registries. Because users will come to rely on these registries as one-stop shopping centers to conduct a “reasonably diligent search” for the rights holders, any pictures they don’t find in the registries will be low hanging fruit for theft.
Within two weeks of the issuance of the Orphan Works Report in 2006, nearly all the domain names associated with orphan works were registered by commercial interests in preparation for the profit-taking that will result if this legislation is passed. Commercial archives will be able to harvest these newly-created “orphans,” alter them slightly to make them “derivative works” and register them as their own copyrighted property. Freelancers would then be forced to compete against their own lost art – and that of their colleagues - for the new commissions they need to make a living.
These proposals would have a disproportionate impact on visual artists because paintings, drawings and photographs are often published without contact information, credit lines can be removed by others and the pictures themselves separated from the publications in which they appeared.
Moreover, the average visual artist produces infinitely more individual works than even the most prolific author or songwriter. The cost to the artist in time and money of registering and maintaining thousands or tens of thousands of registrations will inevitably result in countless managed copyrighted works falling through the cracks and into the royalty-free market. Yet the Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would signal to infringers that these works had been orphaned and were subject to legal infringement.
The Orphan Works Acts go far beyond current concepts of fair use. They are not designed to deal with the special situations of non profit museums, libraries and archives. Instead they would have the effect of forcing freelance creators to risk their own bodies of work to subsidize the start-up businesses of untested search technologies and untried business models – models which would inevitably favor the aggregation of images into corporate databases over the licensing of copyrights by the lone artists who actually create the art.
This would strike a blow at the heart of art itself, and it represents a radical departure from existing business models and copyright law. It is one reason – if hardly the only one - why international copyright law, specifically Article 5 (2) of the Berne Convention, prohibits the requirement of “any formality” as a pre-condition to the enjoyment of full copyright .
FOR PHOTOGRAPHERS - OPENS THE FLOODGATES TO UNAUTHORIZED USE
This Orphan Works legislation allows anyone in the U.S. to use any image by any photographer or stock agency (regardless of nationality) for any purpose (with the exception of “useful” articles – keychains, coffee cups, etc.) without permission of the rights holder, simply by searching for, and failing to locate, the rights holder.
Once the infringer commences use, there is no means by which to stop that infringer from continuing to use the image. This includes use on book covers, advertising, posters, television, billboards, any usage whatsoever, for any purpose, even if the photograph was taken yesterday.
This Orphan Works legislation has no provision to prevent the use of works in a manner that might be reprehensible by the owner. For example, a photograph of my child waving to his grandmother could be used on a brochure produced by the Aryan Nation promoting the hatred of Jews and I could do nothing to stop them. Competing photographers could use my work in their own works. The work of every photographer around the world is fair game under the Orphan Works laws.
By opening the floodgates to unauthorized use of protected works, the proposed legislation will likely result in a tidal wave of litigation and widespread violation of the rights of publicity and rights of privacy of persons pictured in the orphan works. A photographer’s right to exploit copyright in a photograph (and to grant licensed rights to others) is effectively limited by the right of any person appearing in the photograph to control or otherwise limit the use of his or her likeness. Photographers carefully control and limit such use so as to avoid the violation of rights of privacy and publicity of pictured persons. However, under this legislation, that control goes out the window. Parties making use of orphan works will serially violate the rights of publicity and privacy of pictured persons.
All of us must register with registries certified by U.S. Copyright office, or risk the unencumbered use of our images throughout the U.S. If I am fortunate enough to discover that my photograph has been infringed, I must approach the user, prove ownership of my image, and request “reasonable compensation”. The determination of what is “reasonable” is left to the infringer to negotiate, and I lose all rights to sue for copyright infringement even if I have registered my work with the U.S. copyright office far in advance of the usage.
I am entitled to the profits that the infringer has made from the use of my photograph, but only if I can prove those profits. As there is no “discovery” provision in the legislation that would require the infringer to provide me with any information (accounting, correspondence, copies of all usages), it will be virtually impossible for me, or for any rights holder, to determine the extent of the usage and then calculate the profits made by the user.
Under standard copyright law, it is the infringer’s responsibility to prove which portions of its profits are not attributable to the use of the work. The new orphan works legislation would flip this provision on its head, forcing the rights holder to prove the profits of the user, or receive no profits. Proving profits is very difficult and generally requires analysis by forensic accounting experts.
BIOMEDICAL AND SCIENTIFIC ILLUSTRATORS - BILL STRIPS MEDICAL ARTISTS OF COPYRIGHT PROTECTION
My name is ___________________________and I am [title, name of company, state] which specializes in [biomedical and scientific illustrator specialty] and I am a constituent and a small business owner.
I strongly OPPOSE this bill.
This bill not only will hurt my small business but also it will basically change American copyright and intellectual property laws and drive many talented small firms like mine out of business. Our highly-specialized creative work generates important intellectual property for US businesses, nonprofit organizations and universities and plays a critical role in the advancement of science. As biomedical and scientific illustration businesses begin to fail, for-profit and nonprofit organizations will lose a valuable, highly trained group of vendors who consistently provide up-to-date and accurate media.
The proposed Orphan Works bills remove the existing penalty for infringement, which will make it easy for unscrupulous companies to infringe my copyrights and receive nothing more than a ‘hand-slap’ as punishment. As a small business owner, I could not possibly afford the costs of hiring an Intellectual Property attorney and taking the case to Federal court, so I would be unable to protect my work.
MAIN OBJECTONS TO THE PROPOSED “ORPHAN WORKS” AMENDMENTS
- It changes the 1976 U.S. Copyright Act (enacted in 1978), and makes it virtually impossible for artists to protect their work. It basically allows anyone to use a “found image” after unsuccessfully locating the copyright holder through an undefined “qualified search”. Infringers will have legal means to unlawfully use biomedical and scientific illustrations without the copyright holder’s permission.
- It requires biomedical and scientific artists to attempt to protect their work by registering it with a digital database system (presumably for a fee, in addition to the copyright filing fee)—when no such system currently exists. The proposed legislation is predicated on the establishment of private, profit making registries that would establish databases of digital versions of artworks and provide a place for infringers to try to locate the artist, But it will be enacted whether or not these databases ever come into existence. This will relieve the infringer of liability if he simply attempts a search that cannot possibly be performed successfully. In addition, the legislation places no limit on the number of these registries or the prices they would charge. The burden of paying for digitizing and depositing the digitized copy with the private registry would presumably fall entirely on the artist, and even if an image is contained in the registry, as long as the infringer “looks” without finding it, the infringement is allowed. There is no liability imposed for the failure of a database to find an image registered in that database when it is searched, and no requirement that all available databases be searched, thus potentially requiring multiple registrations (and multiple registration fees). There are also no safeguards to prevent any person or company from fraudulently registering work they do not own.
- It eliminates statutory damages whenever an infringer can successfully claim an orphan works defense, thus eliminating the only tool the law provides to prevent deliberate infringement. Current law almost certainly deters rampant infringement because the present remedies – damages of up to $150,000 per -- make infringement risky. By “limiting remedies,” the Orphan Works amendments will effectively create a no-fault license to infringe.
- It allows for an infringer to create—and copyright—a derivative work from the original illustration. Under current law, the right to create a derivative work is one of an artist’s exclusive rights. These bills, if enacted, will allow infringers to make and copyright derivatives—even if the copyright holder to the original work objects.
If this legislation passes it would mean a return to pre-1976 U.S. Copyright Act when many artists' works fell into the public domain because they could not afford to comply with the formalities of copyright registration. This violates the trust under which American artists have worked for the last 30 years. It effectively nullifies our U.S. Copyright registrations and invites sanctions from around the world under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to which the United States is also a signatory, because international artists' works would also be vulnerable to infringement within the U.S. under the terms of the Orphan Works Amendment.
I strongly oppose this legislation, and respectfully request that you do NOT pass it.
Here is the response I got back from my senator, essentially a pro-bill position, leaving off all the problems with the bill:
Dear .... :
Thank you for contacting me regarding S. 2913, the "Shawn Bentley Orphan Works Act." It is good to hear from you.
S. 2913 was introduced on April 24, 2008, and referred to the Senate Judiciary Committee. If enacted, this bill would limit the remedies in a civil action brought for infringement of copyright in an orphan work if the infringer proves three points.
First, the infringer must prove that he performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner. Second, he must prove a Notice of Use was filed with the Register of Copyrights before the work was used, and third, he must prove the infringing use of the work provided attribution to the author and owner, if known, of the copyright.
Under this legislation, owners of works would be able to receive compensation for the use of their infringed work unless the infringement is performed without any commercial advantage and primarily for a charitable, religious, scholarly, or educational purpose and the infringer ceases the infringement expeditiously after receiving notice of the infringement.
Finally, S. 2913 directs the Register of Copyrights to begin a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.
I recognize the importance of preserving the rights of artists to their works and ideas. Should this legislation come before the Senate, I will keep your comments in mind.
Please post as widely as possible, to as many communities as possible.
Corporate use of intellectual law cuts only one way. It has been used to screw farmers out of ownership of seeds. Now they are after artists' rights to their own work. In both cases, these are things it is almost impossible to imagine would be possible, but Monsanto did it with seeds and now sues farmers for trying to collect seeds off their own property and for plants that come up as volunteers. And now corporations are trying to gain control of personally created art work. Biology and creativity.
I assume the digital registry interests are behind this, but others may be as well.
And obviously, there was no "problem" that needed solving. No "orphaned" art out there crying for help.
People are unbelievably cruel sometimes, unbelievably greedy. It's not as though farmers or artists were wealthy. Stealing from people who are struggling to make it is one swell way to make money.
I am very interested in how often the control comes in the form of "labeling," of "ID-ing" something. Alter a plant and it becomes an invention, so it can be numbered and a patent can be slapped on it and control can begin. It is very much like NAIS (see my other diaries) or IDs for voting, or the patches Jews and gays and others were forced to wear to identify themselves. All are ways to set up monopolies or to control populations.
But how do the corporations deal with labeling themselves? Ask Monsanto. It pushes laws state to state to ban all labeling of rBGH-milk and GE-food and cloned animals.
Digital tracking systems for our animals, digital registries that must be paid to "own" our own creative work, property ID numbers on our farmland, patches on people to identify who is to be incinerated, and no limits on and no labeling of cancer-related (rBGH) products.
Don't you just love the "orphan" bit? Art work, out there in the world, innocent as can be, all copyrighted and secure in its parentage, when some corporate fiend comes along, grabs it up, purring "Oh, trust me, poor orphaned art work, I'll find you a home - with me." Art work screams and struggles but corporate fiend knows the true parent has no chance of knowing or even if they find out where, of ever getting their brain child back.
Look at Monsanto and the massive take over of seeds, look at NAIS and farmers and ranchers frantic about the USDA creating a CORPORATE digital library of all their animals and farmland, and look at this - the theft of creativity itself.
Please write: http://capwiz.com/...
It's not just about art, or seeds, or land - it's about stopping totalitarian control.
Patrick Leahy brought this horrific bill. Please contact him at senator_leahy@leahy.senate.gov
(By the way, he has also been part of undermining organic standards: http://www.jacksonprogressive.com/...