Tuesday, August 12, 2008

Opposition to H.R. 5889: "Does Congress Care About Your Creations?" and "Don’t Lose The Rights to Your Artistic Creations"

Does Congress Care About Your Creations?

By Mark Simon, Artist Advocate

On June 12, 2008, Mark Simon posted a new article about Congress's response to readers' letters. He gives permission for this article to be copied, sent, and re-printed. He says, "Please help us spread the word."
Mark Simon keeps trying to chip away at the Orphan Works Act.

When I found out about the Orphan Works Act I was astounded that anyone in Congress would consider legislation that could so obviously be used against artists and their original creations.

I started helping the Illustrator’s Partnership in getting artists to write letters to Congress asking Senators and Representatives to oppose the bill. (You have written a few yourself right? Every voice counts!) So far artists have sent over 99,000 letters opposing the bill through the system the Illustrator’s Partnership set up (http://capwiz.com/illustratorspartnership/home/ ). That doesn’t even count all the letters sent and calls made to Representatives and Senator’s directly.

Your voices are being heard!

At least they are being heard by some people on the Hill. However, I’m not quite sure what some of our Congressmen are listening to. When artist Marty Kleva called the office of his Representative Tom Udall, NM, Kleva was told “This is a very popular bill.”

Really? Popular? Have you seen the outrage in the online artist communities? Has Udall read any of the tens of thousands of letters sent to Congress opposing this bill?

Congressman Steve Kagen stated in his response to Kathy Glasnap, “This bill has come under considerable scrutiny and criticism from people in the arts community”. This statement completely contradicts that of Udall. At least Kagen is listening.

As you may imagine I have gotten a huge amount of e-mails regarding this issue. By far, most artists understand the problems inherent in this legislation and they oppose the bill. Your letters are working and legislators are starting to listen.

At the end of May I asked a number of artists on my Orphan Works E-Mail List to forward the responses they have received from their Representatives and Senators regarding Orphan Works. I got copied on over 60 responses from Congress which show a combination of support for the Bill, opposition to the Bill and a complete lack of understanding of the issue.

Let’s talk about specifics in these responses from our government officials who are supposed to be supporting our best interests.

Some members of Congress do support our position that the Orphan Works Act is bad for the creative community. I have seen letters of support from the following Congressmen. Let’s give them their fair due and please let them know that you appreciate their continued support in opposing the bill.

Ron Paul (extremely strong opposition to the Orphan Works Act)

Sam Farr

John Olver

Diane Feinstein

Tom Feeney

Diane DeGette

Barbara Mikulski

Florida Representative Tom Feeney, and co-chairman of the Intellectual Property Caucus, says about the bill, “I do have several concerns. This bill provides for a potential haven for those who are seeking to use copyrighted works but are unwilling to undertake a thorough search for the copyright owners.” This is also one of my main concerns and I’m glad Feeney agrees.

Many of the responses from our Senators and Representatives had a common phrase regarding a limitation in civil action remedies if an infringer “documented a reasonably diligent search in good faith.”

This phrase, or a portion of it, was included in responses from Tom Feeney, Jack Reed, Vernon Ehlers, Sherrod Brown, David Wu, Lynn Westmoreland, John Hall, Henry Waxman, Saxby Chambliss, Susan Collins, Mel Martinez, Olympia Snowe and Ric Keller.

It’s rather easy to understand how someone could read that phrase and think that a reasonably diligent search for a copyright holder could be a good thing for artists. One problem, the proposed law DOES NOT ENCOURAGE a reasonably diligent search.

In fact the legislation does the opposite. It makes it easy for someone to do a quick search on a registry and then call a work of art an orphan if is doesn’t show in the registry results. No other searching would need to be done to orphan a work. That’s not a diligent search. IT’S LAZY!

I’ve searched for artists to get the rights to use their work in my books. I know what it can take to find someone and get their permission. Sometimes you can’t find them. You know what I do? I don’t use the work without their permission! My inability to find someone doesn’t give me the right to infringe on their work.

Having a searchable registry to help track down artists is a good idea.

Using any registry as a basis to orphan our creative works IS A TERRIBLE IDEA!

The Orphan Works Act is NOT about grandma’s wedding photos.

Some supporters of the Orphan Works Act, such as Senator Ben Cardin, use the argument that this legislation will help grandma restore her wedding photos if she can’t find the original photographer. Grandma’s photos are not what this bill is about.

As artists we are mostly concerned with unauthorized commercial use of our works. Non-profit use of orphaned works is already protected in our current copyright laws.

Senator Bob Corker states in his letter to artist Tony Beazley “I believe that it is important for people to have access to resources and materials without the unnecessary threat of a lawsuit.” I disagree. The threat of a lawsuit is necessary to protect our work from unauthorized use.

In fact, according to Florida Senator Mel Martinez, “The bill specifies that monetary relief may not be made for damages, costs and attorney’s fees.” In no way is this good for artists.

Senator Saxby Chambliss in his letter to artist Brian Laframboise says “Under this legislation, owners of works would be able to receive compensation for the use of their infringed work.” This is a misleading statement. The legislation actually severely limits our potential compensation from infringers, to the point where it may not be practical to go after infringers at all.

When a law limits the penalty for theft of our work to less than the expense of taking that thief to court, there is very little incentive not to steal our work.

Senator Kay Bailey Hutchison contradicts herself in her written response to Roan Matthews. In the same sentence she says “I believe copyright protection is a foundation of innovation”, in which seems to oppose the legislation, but then she continues to say “copyright law should work to ultimately protect the best interests of consumers.” Copyright law is not about protecting consumers, it’s about protecting the rights of creators!

Don’t let Congress orphan your work! Write letters and call NOW!

Take two minutes and write Congress.

Click Here.


Don’t Lose The Rights to Your Artistic Creations

By Mark Simon, Artist Advocate

Others have said it couldn’t happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. THEY WERE WRONG!

If you don’t register every photo and work of art in government certified private databases, you are about to give the legal right for anyone to infringe on your copyright.

“The Orphan Works Act of 2008”, (H.R. 5889) and the “Shawn Bentley Orphan Works Act of 2008” (S.2913), were released to the House of Representatives and the Senate recently. While at first glance the law seems to be a ‘last resort’ for a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.

An “orphan”, as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but the copyright holder can’t be found. Actually, this bill makes it easy for searchers to pretend it’s hard not to find copyright holders!


We cannot just sit back and let this Orphan Works bill pass! As it is written, if it passes we would have to register all of our creative works in all the upcoming private sector registries (those certified by the Copyright office) or risk orphaning all of our work. This means all past, current and future work could be legally used without your permission.

The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new softwares to match an image to be searched with the images that are registered and if found will supply the searcher with the artist’s name and contact information.

Having online registries to search for copyright owners is great. Using these registries as a basis for legally orphaning a work is TERRIBLE.

What makes me think the registries will be used to orphan works of art? Three reasons.

One. Page 2 of the Senate Orphan Bill states “sources of copyright ownership information reasonably available to users, including private databases.”

Two. The effective date of this Bill will take effect either (a )on the date at least two private registries are available online or (b) by January 1, 2011, whichever is first. They are tying the bill to when these registries are available online.

Three. People who want to use your work for free now only have to perform a search for you using these registries, which will be ineffective at best, to qualify your work of art as orphaned, giving them FREE use of your art or photo. The private registries will likely be easy and quick, just not very complete.

All someone has to do is search a couple of these registries and if your work doesn’t show as a match (and remember these software aren’t perfect, so you may have registered your work and still not have it show up in the results) it may be considered orphaned and they can use it for free.


The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every work of art, sketch and photo they have ever produced and register them with every upcoming electronic database. Add to that any studio/artist expenses involved, assistants and assumed registration fees, and it’s even less likely much work will make its way into the registries.


Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.

Religious painter Gary Lessord created a painting in 1979 called “The Crucifixion”. According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his “Passion of the Christ”.

[Figure 02, The Crucifixion by Gary Lessord. Copyright 1979. All Rights Reserved.]

Lessord’s painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book “The Many Faces of Christ”, featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and being the ONLY work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.

Under the current copyright laws, if found guilty Gibson and his production company are liable for the infringement.

If the new Orphan Bill passes, all they would have had to do is search two of the registries and if the image doesn’t show up, consider it an orphan and use the work. It won’t matter how popular the piece is if Lessord doesn’t register it in the same digital databases used in their search.

The new Orphan Works Act will orphan even internationally known works of art such as Lessord’s.

Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. Current copyright law has allowed him to sue and successfully collect large damages from the infringing companies.

“This has GOT TO STOP,” says McCandlish. “It will only get worse—much worse if the Orphan Works legislation passes.”

[Figure 03, Tomcats by Mark McCandlish. Copyright 1991. All Rights Reserved.]


In the new legislation, McCandlish would not have the same ability to sue for statutory damages. The new law will “limit remedies”, thereby removing the expensive penalty for stealing your work. Sure, you will still be able to sue, but you will be limited to the amount. This only empowers those who want to steal our creative works!

This means the most an infringer would have to pay IS WHAT THE INFRINGER FEELS HE SHOULD HAVE PAID IN THE FIRST PLACE! You, the artist, will no longer be entitled to any monetary recovery from the infringement damage, costs or attorney fees, which would often be more than what they could collect. Any betting man wanting to use your art would take these odds and steal your work.

If you don’t think this applies to you, think again. Have you ever taken a photo that is on the internet? Maybe you have photos on a photo sharing service like Flickr, Shutterfly or Snapfish.

Just imagine one of your photos was used by someone else on their site. That happens all the time, but if there is no commercial benefit to them, it’s no big deal. Right? Wrong!

If a designer finds your photo on someone else’s site (making it harder to find you, the true owner) and you haven’t registered it in the online databases, an unsuccessful search on a certified registry will orphan your photo, allowing its use without your permission. You could end up seeing your photo in a national ad campaign, possibly for a product you don’t want to be associated with.


The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to your work and copyright it under their own name!

Do you want to see what lewd things people can do to your work LEGALLY? You would have no recourse but to watch your creations be altered, sold and potentially ruin the reputation of your work.

Proponents of this Bill say they are protecting the rights of the people to make use of existing creative works if they can’t find the owner. WHAT RIGHTS? Just because you can’t find me, doesn’t give you the right to use my work!

If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner? Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don’t include that information in the first place.

Sure, we can also put digital watermarks on scanned images, but not every piece of art or photograph is only in digital form. Plus, there is an easy work-around to remove digital watermarks as well. (If you don’t know it, I’M not going to tell you!)

You must make yourself heard NOW. This bill must not be allowed to pass!

Any single clause or amendment to a bill can cause an otherwise well-intended law to become devastating to a segment or segments of the population. According to Dan Nichols, who has worked on a number of political campaigns, it can take an average of 7 bills to reverse the total impact of a single bill one it is passed. This means 7 times the effort and money to reverse a bad law - even though it is recognized as a bad law - because there will be many different groups wanting to hold on to the parts of the law that benefit them. It is nearly impossible to completely reverse the effects of a law once it passes. This should make apathy the enemy of anyone who has something to lose by any aspect of a pending bill.



Take two minutes and send a letter to Congress with just a couple of clicks.

Click Here.


Source: Orphan Works


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