Making some Noise, Part II
More articles from the Illustrator's Partnership:
FROM THE ILLUSTRATORS PARTNERSHIP
June 20th, 2006 -- On Tuesday June 20, the Illustrators' Partnership attended an informal meeting of organizations concerned about the pending Orphan Works Legislation. The meeting took place at the Jacob Javits Center in Manhattan, during the Licensing International Show.
The meeting was convened by Joanne Fink, president of Lakeside Design, a prominent design house in the gift and stationery industry. Ms. Fink asked IPA to help prepare for the meeting and provide materials for distribution. Illustrator Jonathan Twingley, representing the Illustrators' Partnership, provided fifteen articles written by IPA on the subject of Orphan Works, including two sample letters and instructions for contacting members of Congress. Also attending the meeting were Donald French, Vice President of Marketing for the Paper Magic Group, a leader in the seasonal products industry; Steven Berger, CEO of the Crafts and Hobbies Association; Mark Timm, president of Grace Licensing, an artists' licensing company; and Tricia McKiernan, administrative director of the Graphic Artists Guild.
Attendees were well aware of the pending Orphan Works legislation and its devastating consequences for artists, licensers and manufacturers. It was noted that writing letters to your Congressmen has been effective in voicing artists' concerns up to this point, and should be continued with a renewed urgency as the Chairman of the House IP Subcommittee - Lamar Smith (R-Texas) - could schedule the bill for markup with as little as 24 hours' notice.
It was also agreed that a lobbying effort should be seriously considered, and each representative of the art licensing businesses present agreed to contact their respective boards accordingly. IPA suggested a conference call in the coming weeks and Steven Berger volunteered to arrange the call on July 11th to continue strategy discussions.
- The Board of the Illustrators' Partnership
To identify your representative, enter your zip code at http://www.congress.org
To contact other Congressional Representatives, go to the IPA ORPHAN WORKS RESOURCE PAGE FOR ARTISTS http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Concerning how this bill will effect businesses:
FROM THE ILLUSTRATORS’ PARTNERSHIP
Artists and photographers aren’t the only professionals threatened by the Orphan Works Bill. Countless small businesses will be hurt. Copyright Attorney Megan E. Gray represents textile designers, sculptors and other visual artists who license their work to various industries. She is affiliated with Roylance, Abram, Berdo & Goodman, L.L.P.
Because I am a copyright attorney, I have been following the Orphan Works bill, and have been astonished at how few companies are aware of it, even those who have built their business on the exploitation of visual designs.
In the briefest summary, the Orphan Works legislation gives your competitors, customers, and anyone else the right to use your design so long as they had reason to think it wasn't copyrighted. If you catch them, you might only be entitled to a trivial monetary payment.
Currently, under the Copyright Act, if someone copies your design, you are entitled to that competitor's net profits from the infringement. And, if you registered the design prior to the infringement, you are entitled to statutory damages (as high as $150,000) and recovery of your attorneys fees (which can be massive). These monetary penalties are intentionally high in order to provide a solid disincentive to infringers and a serious incentive to original designers. For years, the guiding principle in the design world has been "if you didn't create it, don't use it." With this new legislation, that principle will be turned on its head.
Under the "Orphan Works" proposal, if someone copies your design, if that person didn't know that the design was yours (for example, if a big company orders a million shirts with your design from a Chinese manufacturer who fraudulently showed your design as part of its open line, claiming that it is public domain), then all you could ever get is "reasonable compensation."
This could very well be peanuts, notwithstanding that the infringer made a massive profit on the shoddy items bearing replicas of your design (apparel, stationary, holiday cards, shower curtains, pillows, you-name-it). And you will never recover your attorneys fees or have the option of statutory damages, not even if you went to the trouble of registering your copyright years ago, and regardless of whether you have always placed the © notice on your product.
Further, if you and the infringer disagree on what "reasonable compensation" is, you may be hard-pressed to litigate the matter, because your attorneys fees may end up being greater than what you could get as a "reasonable compensation." So, you'll likely just have to take whatever is offered to you, and have no ability to negotiate a higher sum.
And, keep in mind, any promises of exclusivity of a particular design you make to a customer will be a sham.
Museums and libraries created the "Orphan Works" legislation so that they could create exhibits and souvenirs with photographs, music, books, etc., whose copyright owners could not be identified. Their fear was that, notwithstanding their effort to find the copyright owner, that person would suddenly crawl out of the woodwork and demand high monetary damages based on the infringing exhibits/souvenirs. There isn't any fundamental objection to providing protection against that situation. But the legislation is so broadly drafted, it isn't limited to that scenario - the legislation applies to all copyrighted works, all commercial uses, and all users/infringers. The breadth of the legislation is particularly horrifying in the context of visual art, like textile design, because of the overwhelming amount of infringing material found in the most common manufacturing locales, like Asia.
Proponents of the legislation say that you can protect your copyright by making it easy for you to be found, to make it easy for anyone to know that a design is yours. How is this to be done?
Well, the legislators say that all you need to do is "just" digitize and create an online database of each and every visual design that you own or hereafter create, and publicize that database in numerous trade magazines in a variety of industries, or perhaps "just" create a new trade association comprising all the visual artists in the country (jewelers, tattoo artists, photographers, ceramic tile companies, wrapping paper companies, carpet designers, etc.) and, through that organization, digitize everyone's designs and have a single, unified online database, searchable by scanned designs. In other words, Congress seems to think that you have budgeted several million dollars to fundamentally change the way you do business. And, to add icing to the cake, no computer technology currently exists that makes it possible to create a searchable database of designs.
Frighteningly, this legislation is moving very fast in Congress and it appears likely to be made into law soon. It is critically important to get trade associations and individual companies acting against the legislation, and contacting and meeting with key Congressional legislators as well as their own Senators and House Representatives. Please do not underestimate the importance of making your voice heard - it is the only thing that will prevent this legislation from becoming law.
Personalized letters talking about your own circumstances are the most persuasive. The most critical points to include in the very first paragraph of your letter are that (1) you are a constituent; (2) you are writing about the proposed "Orphan Works Act of 2006" now before the House Judiciary Committee, and (3) you are opposed to the bill.
You can identify your representative by entering your zip code into http://www.congress.org
- Megan E. Gray
mgray@roylance.com
To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov
Enter H.R. 5439 in the search box, and select the "Bill Number" search option. It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Co-sponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Or see IPA Forums: “Free Culture-The Copy Left Is Not Right.”
Another sample letter:
FROM THE ILLUSTRATORS’ PARTNERSHIP
As we wrote you yesterday, various interest groups are joining the opposition to the Orphan Works Act. Starting the week of July 10 - when Congress reconvenes from its Fourth of July recess, we’ll be emailing lawmakers in concert. Please take the next week to get your letters ready, but hold off sending them until then.
Yesterday we sent you an easily digestible, bullet point letter listing the objections we have with the current legislation. It’s a sample letter intended to put the issues on the table so that lawmakers can immediately understand the bill’s flaws. Today we’re sending you another sample letter, intended to explain those flaws in greater detail. This might be the type of letter to send to your Congressional representative, who - unless he or she is on the Judiciary Committee - might not have heard of the bill before.
In writing to your representative you should note in your first paragraph that you are a.) a constituent; b.) a small business owner; c.) opposed to the Orphan Works Act. You can edit, copy and paste the text of our letters onto your letterhead for faxing. Feel free to modify our language. Personalize your letters and include some relevant information about your business. Remember that these letters are the only way we have to make our voices heard in Congress. Please join us: get your letter ready for sending the week of July 10.
You can identify your representative by entering your zip code into http://www.congress.org
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Please post or forward this email in its entirety to any interested party ______________________________________________________________________________________To have your name removed from this mailing list, send a reply email with “Remove Name” in the subject line. You will receive verification. To remain on our mailing list, send a reply email to this message with “Continue Mailing” in the subject line. You need only do this once.
SAMPLE LETTER:
The Honorable ______ ____________
U.S. House of Representatives
Washington, DC 20515
Via Facsimile
RE: HR 5439
DATE, 2006
Dear Rep ______________,
Re: Opposition to “Orphan Works” Proposal
(H.R. 5439)
(INCLUDE INTRODUCTORY SENTENCE(S) HERE) As a constituent and a small business owner, I'm writing about the “Orphan Works Act of 2006” (H.R. 5439) now before the House Judiciary Committee. I strongly oppose this bill.
The Orphan Works Act is not truly an Orphan Works Act because it has been written so broadly its use cannot be confined to true orphaned works. This means it will not serve the purpose for which it is intended, but instead will legalize the infringement of vast quantities of visual art, including potentially, my work. And since it will be retroactive, it will effectively repeal the protections of the 1976 Copyright Act, jeopardizing the copyrights I have created under the existing law.
The Orphan Works Act will not serve the objective of copyright law to stimulate and reward creativity. On the contrary it will remove protection from countless images and drive countless business decisions which should be made in the marketplace into Federal Court. This is no exaggeration. The Copyright Office has recommended that Congress create a new branch of the Federal judiciary system to resolve the expected disputes over copyright abuse. I believe it is dysfunctional for government to create a problem which does not exist, then say the problem can be solved by driving more business owners into court. By contrast, no businesses will be destroyed and no jobs lost if the Orphan Works Act is not passed.
The Orphan Works Act was proposed to deal with the problem of so-called orphan works - that is copyrighted work whose authors are hard to identify or locate. An appropriate Orphan Works amendment would have applied to old work whose authors have died or abandoned their copyrights. But this proposal would legalize the commercial or non-commercial infringement of any work of art, past, present, and future, regardless of age, country of origin, published or unpublished, whenever the rights holder cannot be identified or located. This would disproportionately harm visual artists because trade practice commonly requires that our work be published without identifying information, or because unscrupulous people can remove credit lines from published work - and because the Copyright Office has never implemented technology to allow users to research registered works of art.
The Orphan Works Act would permit users to infringe my protected work based on the infringer’s alleged failure to find me. It allows the infringer to determine when he has made a “good faith, reasonably diligent search,” yet it does not even define “reasonable diligence.” Moreover no infringer who infringes my work in bad faith is likely to admit it, so I would expect that under this bill, even unscrupulous users will assert a “good faith” defense and tell anyone who contests them: “So sue me!”
By permitting this kind of irresponsible infringement, the law effectively prevents me from granting an exclusive license to my clients. This will harm my business because the market value of my work is measured by the licensing potential locked up by my exclusive rights, and it will harm the clients I work for because exclusive licenses are critical to the success of their companies.
There is also a provision in this bill that would impose an almost complete ban on injunctive relief where the infringer “recasts, transforms, adapts or integrates the infringed work in an new work of authorship.” It would not require the infringer to contribute “a significant amount of expression” to this new work. So by permitting the infringer to simply “integrate” the infringed work into a new work, the mere inclusion of an orphaned work (unchanged in its entirety) would be sufficient to immunize the infringer from damages. At present the law does not allow infringers to claim my work by simply infringing it, but this legislation would let them.
What makes it worse is that there is no real need for this bill. Under current law, not-for-profit organizations such as libraries, museums and others are already permitted wide use of orphaned works. As for commercial users, what is the downside for those who can’t find the owner of a copyright? If commercial publishers, for example, are uncertain about a work’s copyright status, they can hire an artist to create a new work of art. They’ve been doing it for hundreds of years. Creating new work stimulates the economy. It doesn’t depress it. And stimulating creativity has been one of the traditional goals of copyright law.
Those who are promoting this bill say it will only affect art of little or no commercial value. While that may be true of real orphaned work, it is not true of my work, nor of the countless managed copyrights that will be mistaken for orphans.
The Orphan Works Report states that a “good faith reasonably diligent search” for a copyright holder will be “a very general standard” defined solely by the users themselves. But many users will have an interest in not finding me, and unless I’m willing to accept what the infringer is willing - or able - to pay, after the infringement has taken place, my only recourse for the unauthorized use of my work will be to bring an action before the courts.
Copyright law is a Federal law. There are only 11 Federal Circuits in the country with 97 U.S. District Courts. Does this mean I would have to travel to one of them every time I needed to file a small dollar infringement claim? If so, I wouldn’t be able to add travel and lodging expenses. In court, it would be my burden to prove the fair market value of my infringed work in the infringer’s market. This could require me to testify in depositions and produce expert witnesses. Yet, under the proposed “limitations on remedies,” I could not obtain court costs or attorneys’ fees, nor any of these other expenses - not even if my work had been pre-registered. The Orphan Works amendment virtually guarantees that the cost of suing an infringer would exceed whatever sum I could recover in a successful court action. Yet it would NOT limit the amount of attorneys fees or damages the infringer could obtain from me in a countersuit! This is astonishing.
By “limiting remedies,” the Orphan Works amendment will create a no-fault license to infringe. Consider the kind of legal action that I could be forced to bring in the future - not to protect my copyright (which will already be compromised) - but to determine what the lowest prevailing rate may be for a certain kind of usage.
Let’s say in the 1990’s, I licensed a series of pictures for one-time use in a corporate annual report. In such cases, copyright notice and credits are almost always omitted by art directors. The same is true for advertisements, in spite of the wishes of the artist to preserve his credit. So let’s say I registered my copyright in this work as part of a group registration, the title of which was based on the annual report. I subsequently licensed some of these pictures for exclusive use in various ads in the U.S., and I make it a practice never to license my work for inexpensive or distasteful products.
But let’s say an infringer finds the annual report. He likes the pictures, sees no credit and does a “good faith” search that fails to identify me as the owner of the copyright. He begins selling cheap t-shirts bearing my art. Under current copyright law, my remedies would include statutory damages, attorney’s fees, impoundment and injunction for this flagrant infringement. That’s because it’s damaged my exclusive right to license my work in high-end markets. But under a “good-faith reasonably diligent” infringement defense, my remedy would be what? Reasonable compensation for use of my work on cheap t-shirts. And even this would be limited to whatever maximum the court might set and would be constructed not to deprive the infringer of the profits he made in reliance on his so-called failure to locate me.
Without the deterrent of statutory damages and attorneys fees - and without a permanent injunction against repeat offenses by the same t- shirt seller, this experience would now act as an incentive for the infringer to exploit other uncredited (and therefore, effectively orphaned) images by other artists. The infringer has discovered that infringing is just a rational business decision. This, in turn, would embolden yet other infringers.
Creating a new form of legalized infringement without statutory remedies - even for registered copyrights - and telling me I can start going to court on a regular basis as a solution to the wave of infringements that will result is not a workable approach. It will only serve to legitimize the taking of our copyrights. For these and other reasons, I respectfully ask you to consider the negative effects that Orphan Works legislation will have on free market transactions. Please vote against this bill unless it is amended to do at least the following things:
1. Precisely define an orphan work as a copyright no longer managed by a rights holder;
2. Define how an orphaned work can be distinguished from a managed copyright;
3. Raise the infringer’s bar of due diligence and precisely define the steps a user must take before infringing a work;
4. Eliminate the unrestricted use of a copyrighted work in a “transformative” work;
5. Restrict the use of true orphan works to not-for-profit uses;
6. Restore full remedies for infringement as the only means rights holders have for protecting their intellectual property;
7. Delay implementation until the Copyright Office makes its own inventory of images searchable on-line by users;
8. Delay implementation until government can conduct an economic impact study on the effects of this bill on commercial markets.
Thank you for taking the time to read this letter. I cannot over-state how much damage this bill could do to my business and to the hundreds of thousands of independent contractors and the businesses we license our work to.
Sincerely,
How technology plays (or doesn't) in this game:
FROM THE ILLUSTRATORS’ PARTNERSHIP
“Current available picture matching technology is still in its infancy. If one of the motivations of [Orphan Works] legislation is to facilitate market development of a database for visual arts - the effective date should correlate to a time where a database could realistically be functional.”
- The Honorable Howard L. Berman For the Mark-up of H.R.5439, the "Orphan Works Act of 2006," May 23, 2006
Technology not necessarily solution to everything
by John Jerney (May. 23, 2006)
Here in Silicon Valley, we like to think that technology, by and large, is a good thing. Technology enables. Technology empowers. Technology, when used properly, can level the playing field between the small and the mighty.
But technology, it turns out, can also be an excuse. Technology can be a shield. Technology can sometimes be used to justify.
This less-than-ideal image of technology is fast being driven into focus by a seemingly obscure piece of proposed legislation to amend the United States copyright laws, ostensively dealing with the subject of orphaned works.
Here is the issue at hand. Museums, libraries, and large corporations are trying to find a way to be able to use copyrighted works, including photographs and other artistic efforts, for which they cannot locate the copyright owner.
The owner may, for example, be anonymous, or could be deceased, unidentifiable, or simply impossible to track down. Whatever the case, potential licensees would like to gain access to these supposedly orphaned properties.
Under the current proposal, which is working its way through the committees in the U.S. Congress, organizations would only need to show that they have conducted a "good faith, reasonably diligent search" before declaring that a work has been orphaned.
And herein lies the problem. Mention the phrase "orphaned works" and the vision of cracked and yellowed century-old prints come to mind. However, an orphaned work could really be any age. In fact, it could be a freshly captured photograph whose attribution and ownership information has intentionally or unintentionally been separated from the file.
For textual material, such as articles, manuscripts and screenplays, this does not present too much of a problem. These items are easy to store on the Internet, and search technologies are rather adept at finding obscure references, even when restricted to searches based on only a few unique words.
In the case of photographs, however, the situation is much different. While some progress has been made in "fingerprinting" images, the technology behind identifying particular characteristics is still some ways off.
Likewise, even the most powerful search engine, Google, uses file names and other textual information as the primary means for performing image searches. Finding photographs based purely on content is very difficult; and you can forget about trying to locate something based on emotional traits, such as "couple in love."
The Copyright Office itself offers little in the way of a solution. To reduce registration costs, many photographers routinely submit hundreds or thousands of photographs at a time, registered under a single title for the body of work, such as "January 2006 Photographs."
By not offering online access to images, nor any plans to do so, the Copyright Office best remains a place where issues of ownership can be settled only after an infringement is discovered.
This all adds up to a single undeniable fact. There is no effective search mechanism, central repository, or copyright clearinghouse that enables companies to perform due diligence searches to efficiently locate artists.
Technology, it seems, is not up to the task of providing a solution.
All of which makes the proposed orphan works amendments particularly troubling to creative artists, including photographers, by effectively turning the burden of effort related to identifying and upholding the proper use and licensing of creative works from the potential licensee to the owner.
Morton Beebe (www.mortonbeebe.com ), the legendary San Francisco photographer who helped establish Image Bank, the first modern stock photography agency, is particularly wary of the proposed changes.
"I hope it doesn't become law because I don't think it serves the best interest of the public at large," Beebe told me. "To me, it just provides people with a weak excuse to circumvent and abuse the ingenuity of creative artists."
As an explorer as well as a photographer, Beebe became the 39th person to reach the South Pole while photographing in Antarctica in 1957-58.
"I remember all the way back to the 1950s when I was part of Magnum Photos in New York," Beebe explained. "They assigned people to go through issues of every major magazine to search for credits, or the absence of credits. Now you, as an individual, couldn't possibly do that.
"But that's what you have to do to protect your copyright. If you don't, your material will eventually land in the public domain."
The deterrent today for copyright infringement is a rather stiff set of penalties, including actual damages, statutory damages, and attorney fees related to seeking recourse.
But the proposed amendment actually lessens the amount of damages a creative artist can claim for so-called orphaned works, settling instead on an undefined concept of "fair market value."
"The idea behind the law appears to be, 'go ahead and use the images and there will be no penalty' because you supposedly made every effort to locate the owner," Beebe said.
For his part, Beebe has been trying to get leading manufacturers to include watermarking technologies as standard features in professional cameras.
"I tried to get camera makers to actually embed a copyright right on the film as long as 30 years ago. They didn't want to do it," Beebe recalled. It would seem even simpler today to include a menu item secured by a code allowing customized copyright information to be added directly to the RAW image data.
"Why can't they do that?" he asked. "Plus, it could serve as a great antitheft system. In the meantime, we just have to keep up with the times and make sure that we, as individuals, aren't shoved out of the business."
For Beebe, the orphaned works amendment is a colossal mistake. “To me, it's almost as if people started stealing cars left and right," he explained. "Imagine if all they had to say was, 'Gee, the car was there with the keys in it, and I couldn't find the car registration. I'm sorry, it was just an innocent theft.' How far would that explanation go?"
http://www.yomiuri.co.jp/dy/features/culture/20060523TDY18004.htm
John Jerney is a freelance travel writer and photographer based in the San Francisco Bay Area. He also contributes the “Report from Silicon Valley” column to The Daily Yomiuri, the English language edition of the Yomiuri Shimbun, Japan’s largest circulation daily newspaper. This article is reprinted here with the author’s permission.
To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov
Enter H.R. 5439 in the search box, and select the "Bill Number" search option.It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Cosponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
FROM THE ILLUSTRATORS PARTNERSHIP
June 20th, 2006 -- On Tuesday June 20, the Illustrators' Partnership attended an informal meeting of organizations concerned about the pending Orphan Works Legislation. The meeting took place at the Jacob Javits Center in Manhattan, during the Licensing International Show.
The meeting was convened by Joanne Fink, president of Lakeside Design, a prominent design house in the gift and stationery industry. Ms. Fink asked IPA to help prepare for the meeting and provide materials for distribution. Illustrator Jonathan Twingley, representing the Illustrators' Partnership, provided fifteen articles written by IPA on the subject of Orphan Works, including two sample letters and instructions for contacting members of Congress. Also attending the meeting were Donald French, Vice President of Marketing for the Paper Magic Group, a leader in the seasonal products industry; Steven Berger, CEO of the Crafts and Hobbies Association; Mark Timm, president of Grace Licensing, an artists' licensing company; and Tricia McKiernan, administrative director of the Graphic Artists Guild.
Attendees were well aware of the pending Orphan Works legislation and its devastating consequences for artists, licensers and manufacturers. It was noted that writing letters to your Congressmen has been effective in voicing artists' concerns up to this point, and should be continued with a renewed urgency as the Chairman of the House IP Subcommittee - Lamar Smith (R-Texas) - could schedule the bill for markup with as little as 24 hours' notice.
It was also agreed that a lobbying effort should be seriously considered, and each representative of the art licensing businesses present agreed to contact their respective boards accordingly. IPA suggested a conference call in the coming weeks and Steven Berger volunteered to arrange the call on July 11th to continue strategy discussions.
- The Board of the Illustrators' Partnership
To identify your representative, enter your zip code at http://www.congress.org
To contact other Congressional Representatives, go to the IPA ORPHAN WORKS RESOURCE PAGE FOR ARTISTS http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Concerning how this bill will effect businesses:
FROM THE ILLUSTRATORS’ PARTNERSHIP
Artists and photographers aren’t the only professionals threatened by the Orphan Works Bill. Countless small businesses will be hurt. Copyright Attorney Megan E. Gray represents textile designers, sculptors and other visual artists who license their work to various industries. She is affiliated with Roylance, Abram, Berdo & Goodman, L.L.P.
Because I am a copyright attorney, I have been following the Orphan Works bill, and have been astonished at how few companies are aware of it, even those who have built their business on the exploitation of visual designs.
In the briefest summary, the Orphan Works legislation gives your competitors, customers, and anyone else the right to use your design so long as they had reason to think it wasn't copyrighted. If you catch them, you might only be entitled to a trivial monetary payment.
Currently, under the Copyright Act, if someone copies your design, you are entitled to that competitor's net profits from the infringement. And, if you registered the design prior to the infringement, you are entitled to statutory damages (as high as $150,000) and recovery of your attorneys fees (which can be massive). These monetary penalties are intentionally high in order to provide a solid disincentive to infringers and a serious incentive to original designers. For years, the guiding principle in the design world has been "if you didn't create it, don't use it." With this new legislation, that principle will be turned on its head.
Under the "Orphan Works" proposal, if someone copies your design, if that person didn't know that the design was yours (for example, if a big company orders a million shirts with your design from a Chinese manufacturer who fraudulently showed your design as part of its open line, claiming that it is public domain), then all you could ever get is "reasonable compensation."
This could very well be peanuts, notwithstanding that the infringer made a massive profit on the shoddy items bearing replicas of your design (apparel, stationary, holiday cards, shower curtains, pillows, you-name-it). And you will never recover your attorneys fees or have the option of statutory damages, not even if you went to the trouble of registering your copyright years ago, and regardless of whether you have always placed the © notice on your product.
Further, if you and the infringer disagree on what "reasonable compensation" is, you may be hard-pressed to litigate the matter, because your attorneys fees may end up being greater than what you could get as a "reasonable compensation." So, you'll likely just have to take whatever is offered to you, and have no ability to negotiate a higher sum.
And, keep in mind, any promises of exclusivity of a particular design you make to a customer will be a sham.
Museums and libraries created the "Orphan Works" legislation so that they could create exhibits and souvenirs with photographs, music, books, etc., whose copyright owners could not be identified. Their fear was that, notwithstanding their effort to find the copyright owner, that person would suddenly crawl out of the woodwork and demand high monetary damages based on the infringing exhibits/souvenirs. There isn't any fundamental objection to providing protection against that situation. But the legislation is so broadly drafted, it isn't limited to that scenario - the legislation applies to all copyrighted works, all commercial uses, and all users/infringers. The breadth of the legislation is particularly horrifying in the context of visual art, like textile design, because of the overwhelming amount of infringing material found in the most common manufacturing locales, like Asia.
Proponents of the legislation say that you can protect your copyright by making it easy for you to be found, to make it easy for anyone to know that a design is yours. How is this to be done?
Well, the legislators say that all you need to do is "just" digitize and create an online database of each and every visual design that you own or hereafter create, and publicize that database in numerous trade magazines in a variety of industries, or perhaps "just" create a new trade association comprising all the visual artists in the country (jewelers, tattoo artists, photographers, ceramic tile companies, wrapping paper companies, carpet designers, etc.) and, through that organization, digitize everyone's designs and have a single, unified online database, searchable by scanned designs. In other words, Congress seems to think that you have budgeted several million dollars to fundamentally change the way you do business. And, to add icing to the cake, no computer technology currently exists that makes it possible to create a searchable database of designs.
Frighteningly, this legislation is moving very fast in Congress and it appears likely to be made into law soon. It is critically important to get trade associations and individual companies acting against the legislation, and contacting and meeting with key Congressional legislators as well as their own Senators and House Representatives. Please do not underestimate the importance of making your voice heard - it is the only thing that will prevent this legislation from becoming law.
Personalized letters talking about your own circumstances are the most persuasive. The most critical points to include in the very first paragraph of your letter are that (1) you are a constituent; (2) you are writing about the proposed "Orphan Works Act of 2006" now before the House Judiciary Committee, and (3) you are opposed to the bill.
You can identify your representative by entering your zip code into http://www.congress.org
- Megan E. Gray
mgray@roylance.com
To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov
Enter H.R. 5439 in the search box, and select the "Bill Number" search option. It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Co-sponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
Or see IPA Forums: “Free Culture-The Copy Left Is Not Right.”
Another sample letter:
FROM THE ILLUSTRATORS’ PARTNERSHIP
As we wrote you yesterday, various interest groups are joining the opposition to the Orphan Works Act. Starting the week of July 10 - when Congress reconvenes from its Fourth of July recess, we’ll be emailing lawmakers in concert. Please take the next week to get your letters ready, but hold off sending them until then.
Yesterday we sent you an easily digestible, bullet point letter listing the objections we have with the current legislation. It’s a sample letter intended to put the issues on the table so that lawmakers can immediately understand the bill’s flaws. Today we’re sending you another sample letter, intended to explain those flaws in greater detail. This might be the type of letter to send to your Congressional representative, who - unless he or she is on the Judiciary Committee - might not have heard of the bill before.
In writing to your representative you should note in your first paragraph that you are a.) a constituent; b.) a small business owner; c.) opposed to the Orphan Works Act. You can edit, copy and paste the text of our letters onto your letterhead for faxing. Feel free to modify our language. Personalize your letters and include some relevant information about your business. Remember that these letters are the only way we have to make our voices heard in Congress. Please join us: get your letter ready for sending the week of July 10.
You can identify your representative by entering your zip code into http://www.congress.org
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
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SAMPLE LETTER:
The Honorable ______ ____________
U.S. House of Representatives
Washington, DC 20515
Via Facsimile
RE: HR 5439
DATE, 2006
Dear Rep ______________,
Re: Opposition to “Orphan Works” Proposal
(H.R. 5439)
(INCLUDE INTRODUCTORY SENTENCE(S) HERE) As a constituent and a small business owner, I'm writing about the “Orphan Works Act of 2006” (H.R. 5439) now before the House Judiciary Committee. I strongly oppose this bill.
The Orphan Works Act is not truly an Orphan Works Act because it has been written so broadly its use cannot be confined to true orphaned works. This means it will not serve the purpose for which it is intended, but instead will legalize the infringement of vast quantities of visual art, including potentially, my work. And since it will be retroactive, it will effectively repeal the protections of the 1976 Copyright Act, jeopardizing the copyrights I have created under the existing law.
The Orphan Works Act will not serve the objective of copyright law to stimulate and reward creativity. On the contrary it will remove protection from countless images and drive countless business decisions which should be made in the marketplace into Federal Court. This is no exaggeration. The Copyright Office has recommended that Congress create a new branch of the Federal judiciary system to resolve the expected disputes over copyright abuse. I believe it is dysfunctional for government to create a problem which does not exist, then say the problem can be solved by driving more business owners into court. By contrast, no businesses will be destroyed and no jobs lost if the Orphan Works Act is not passed.
The Orphan Works Act was proposed to deal with the problem of so-called orphan works - that is copyrighted work whose authors are hard to identify or locate. An appropriate Orphan Works amendment would have applied to old work whose authors have died or abandoned their copyrights. But this proposal would legalize the commercial or non-commercial infringement of any work of art, past, present, and future, regardless of age, country of origin, published or unpublished, whenever the rights holder cannot be identified or located. This would disproportionately harm visual artists because trade practice commonly requires that our work be published without identifying information, or because unscrupulous people can remove credit lines from published work - and because the Copyright Office has never implemented technology to allow users to research registered works of art.
The Orphan Works Act would permit users to infringe my protected work based on the infringer’s alleged failure to find me. It allows the infringer to determine when he has made a “good faith, reasonably diligent search,” yet it does not even define “reasonable diligence.” Moreover no infringer who infringes my work in bad faith is likely to admit it, so I would expect that under this bill, even unscrupulous users will assert a “good faith” defense and tell anyone who contests them: “So sue me!”
By permitting this kind of irresponsible infringement, the law effectively prevents me from granting an exclusive license to my clients. This will harm my business because the market value of my work is measured by the licensing potential locked up by my exclusive rights, and it will harm the clients I work for because exclusive licenses are critical to the success of their companies.
There is also a provision in this bill that would impose an almost complete ban on injunctive relief where the infringer “recasts, transforms, adapts or integrates the infringed work in an new work of authorship.” It would not require the infringer to contribute “a significant amount of expression” to this new work. So by permitting the infringer to simply “integrate” the infringed work into a new work, the mere inclusion of an orphaned work (unchanged in its entirety) would be sufficient to immunize the infringer from damages. At present the law does not allow infringers to claim my work by simply infringing it, but this legislation would let them.
What makes it worse is that there is no real need for this bill. Under current law, not-for-profit organizations such as libraries, museums and others are already permitted wide use of orphaned works. As for commercial users, what is the downside for those who can’t find the owner of a copyright? If commercial publishers, for example, are uncertain about a work’s copyright status, they can hire an artist to create a new work of art. They’ve been doing it for hundreds of years. Creating new work stimulates the economy. It doesn’t depress it. And stimulating creativity has been one of the traditional goals of copyright law.
Those who are promoting this bill say it will only affect art of little or no commercial value. While that may be true of real orphaned work, it is not true of my work, nor of the countless managed copyrights that will be mistaken for orphans.
The Orphan Works Report states that a “good faith reasonably diligent search” for a copyright holder will be “a very general standard” defined solely by the users themselves. But many users will have an interest in not finding me, and unless I’m willing to accept what the infringer is willing - or able - to pay, after the infringement has taken place, my only recourse for the unauthorized use of my work will be to bring an action before the courts.
Copyright law is a Federal law. There are only 11 Federal Circuits in the country with 97 U.S. District Courts. Does this mean I would have to travel to one of them every time I needed to file a small dollar infringement claim? If so, I wouldn’t be able to add travel and lodging expenses. In court, it would be my burden to prove the fair market value of my infringed work in the infringer’s market. This could require me to testify in depositions and produce expert witnesses. Yet, under the proposed “limitations on remedies,” I could not obtain court costs or attorneys’ fees, nor any of these other expenses - not even if my work had been pre-registered. The Orphan Works amendment virtually guarantees that the cost of suing an infringer would exceed whatever sum I could recover in a successful court action. Yet it would NOT limit the amount of attorneys fees or damages the infringer could obtain from me in a countersuit! This is astonishing.
By “limiting remedies,” the Orphan Works amendment will create a no-fault license to infringe. Consider the kind of legal action that I could be forced to bring in the future - not to protect my copyright (which will already be compromised) - but to determine what the lowest prevailing rate may be for a certain kind of usage.
Let’s say in the 1990’s, I licensed a series of pictures for one-time use in a corporate annual report. In such cases, copyright notice and credits are almost always omitted by art directors. The same is true for advertisements, in spite of the wishes of the artist to preserve his credit. So let’s say I registered my copyright in this work as part of a group registration, the title of which was based on the annual report. I subsequently licensed some of these pictures for exclusive use in various ads in the U.S., and I make it a practice never to license my work for inexpensive or distasteful products.
But let’s say an infringer finds the annual report. He likes the pictures, sees no credit and does a “good faith” search that fails to identify me as the owner of the copyright. He begins selling cheap t-shirts bearing my art. Under current copyright law, my remedies would include statutory damages, attorney’s fees, impoundment and injunction for this flagrant infringement. That’s because it’s damaged my exclusive right to license my work in high-end markets. But under a “good-faith reasonably diligent” infringement defense, my remedy would be what? Reasonable compensation for use of my work on cheap t-shirts. And even this would be limited to whatever maximum the court might set and would be constructed not to deprive the infringer of the profits he made in reliance on his so-called failure to locate me.
Without the deterrent of statutory damages and attorneys fees - and without a permanent injunction against repeat offenses by the same t- shirt seller, this experience would now act as an incentive for the infringer to exploit other uncredited (and therefore, effectively orphaned) images by other artists. The infringer has discovered that infringing is just a rational business decision. This, in turn, would embolden yet other infringers.
Creating a new form of legalized infringement without statutory remedies - even for registered copyrights - and telling me I can start going to court on a regular basis as a solution to the wave of infringements that will result is not a workable approach. It will only serve to legitimize the taking of our copyrights. For these and other reasons, I respectfully ask you to consider the negative effects that Orphan Works legislation will have on free market transactions. Please vote against this bill unless it is amended to do at least the following things:
1. Precisely define an orphan work as a copyright no longer managed by a rights holder;
2. Define how an orphaned work can be distinguished from a managed copyright;
3. Raise the infringer’s bar of due diligence and precisely define the steps a user must take before infringing a work;
4. Eliminate the unrestricted use of a copyrighted work in a “transformative” work;
5. Restrict the use of true orphan works to not-for-profit uses;
6. Restore full remedies for infringement as the only means rights holders have for protecting their intellectual property;
7. Delay implementation until the Copyright Office makes its own inventory of images searchable on-line by users;
8. Delay implementation until government can conduct an economic impact study on the effects of this bill on commercial markets.
Thank you for taking the time to read this letter. I cannot over-state how much damage this bill could do to my business and to the hundreds of thousands of independent contractors and the businesses we license our work to.
Sincerely,
How technology plays (or doesn't) in this game:
FROM THE ILLUSTRATORS’ PARTNERSHIP
“Current available picture matching technology is still in its infancy. If one of the motivations of [Orphan Works] legislation is to facilitate market development of a database for visual arts - the effective date should correlate to a time where a database could realistically be functional.”
- The Honorable Howard L. Berman For the Mark-up of H.R.5439, the "Orphan Works Act of 2006," May 23, 2006
Technology not necessarily solution to everything
by John Jerney (May. 23, 2006)
Here in Silicon Valley, we like to think that technology, by and large, is a good thing. Technology enables. Technology empowers. Technology, when used properly, can level the playing field between the small and the mighty.
But technology, it turns out, can also be an excuse. Technology can be a shield. Technology can sometimes be used to justify.
This less-than-ideal image of technology is fast being driven into focus by a seemingly obscure piece of proposed legislation to amend the United States copyright laws, ostensively dealing with the subject of orphaned works.
Here is the issue at hand. Museums, libraries, and large corporations are trying to find a way to be able to use copyrighted works, including photographs and other artistic efforts, for which they cannot locate the copyright owner.
The owner may, for example, be anonymous, or could be deceased, unidentifiable, or simply impossible to track down. Whatever the case, potential licensees would like to gain access to these supposedly orphaned properties.
Under the current proposal, which is working its way through the committees in the U.S. Congress, organizations would only need to show that they have conducted a "good faith, reasonably diligent search" before declaring that a work has been orphaned.
And herein lies the problem. Mention the phrase "orphaned works" and the vision of cracked and yellowed century-old prints come to mind. However, an orphaned work could really be any age. In fact, it could be a freshly captured photograph whose attribution and ownership information has intentionally or unintentionally been separated from the file.
For textual material, such as articles, manuscripts and screenplays, this does not present too much of a problem. These items are easy to store on the Internet, and search technologies are rather adept at finding obscure references, even when restricted to searches based on only a few unique words.
In the case of photographs, however, the situation is much different. While some progress has been made in "fingerprinting" images, the technology behind identifying particular characteristics is still some ways off.
Likewise, even the most powerful search engine, Google, uses file names and other textual information as the primary means for performing image searches. Finding photographs based purely on content is very difficult; and you can forget about trying to locate something based on emotional traits, such as "couple in love."
The Copyright Office itself offers little in the way of a solution. To reduce registration costs, many photographers routinely submit hundreds or thousands of photographs at a time, registered under a single title for the body of work, such as "January 2006 Photographs."
By not offering online access to images, nor any plans to do so, the Copyright Office best remains a place where issues of ownership can be settled only after an infringement is discovered.
This all adds up to a single undeniable fact. There is no effective search mechanism, central repository, or copyright clearinghouse that enables companies to perform due diligence searches to efficiently locate artists.
Technology, it seems, is not up to the task of providing a solution.
All of which makes the proposed orphan works amendments particularly troubling to creative artists, including photographers, by effectively turning the burden of effort related to identifying and upholding the proper use and licensing of creative works from the potential licensee to the owner.
Morton Beebe (www.mortonbeebe.com ), the legendary San Francisco photographer who helped establish Image Bank, the first modern stock photography agency, is particularly wary of the proposed changes.
"I hope it doesn't become law because I don't think it serves the best interest of the public at large," Beebe told me. "To me, it just provides people with a weak excuse to circumvent and abuse the ingenuity of creative artists."
As an explorer as well as a photographer, Beebe became the 39th person to reach the South Pole while photographing in Antarctica in 1957-58.
"I remember all the way back to the 1950s when I was part of Magnum Photos in New York," Beebe explained. "They assigned people to go through issues of every major magazine to search for credits, or the absence of credits. Now you, as an individual, couldn't possibly do that.
"But that's what you have to do to protect your copyright. If you don't, your material will eventually land in the public domain."
The deterrent today for copyright infringement is a rather stiff set of penalties, including actual damages, statutory damages, and attorney fees related to seeking recourse.
But the proposed amendment actually lessens the amount of damages a creative artist can claim for so-called orphaned works, settling instead on an undefined concept of "fair market value."
"The idea behind the law appears to be, 'go ahead and use the images and there will be no penalty' because you supposedly made every effort to locate the owner," Beebe said.
For his part, Beebe has been trying to get leading manufacturers to include watermarking technologies as standard features in professional cameras.
"I tried to get camera makers to actually embed a copyright right on the film as long as 30 years ago. They didn't want to do it," Beebe recalled. It would seem even simpler today to include a menu item secured by a code allowing customized copyright information to be added directly to the RAW image data.
"Why can't they do that?" he asked. "Plus, it could serve as a great antitheft system. In the meantime, we just have to keep up with the times and make sure that we, as individuals, aren't shoved out of the business."
For Beebe, the orphaned works amendment is a colossal mistake. “To me, it's almost as if people started stealing cars left and right," he explained. "Imagine if all they had to say was, 'Gee, the car was there with the keys in it, and I couldn't find the car registration. I'm sorry, it was just an innocent theft.' How far would that explanation go?"
http://www.yomiuri.co.jp/dy/features/culture/20060523TDY18004.htm
John Jerney is a freelance travel writer and photographer based in the San Francisco Bay Area. He also contributes the “Report from Silicon Valley” column to The Daily Yomiuri, the English language edition of the Yomiuri Shimbun, Japan’s largest circulation daily newspaper. This article is reprinted here with the author’s permission.
To read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.gov
Enter H.R. 5439 in the search box, and select the "Bill Number" search option.It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Cosponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports.
For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185