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T. Kyle Gentry
Posts:25
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| 05/12/2008 9:23 PM |
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I don't mean to scare anyone but this needs to be circulated amongst the creative community.
There is a bill coming up before congress this year called the S. 2913, The Shawn Bentley Orphan Works Act of 2008. I will post below a letter, which I have signed to my congressman strongly opposing this destructive bill. In layman's terms it takes away your passive copyright both on current work and past works even though they may have been completed before this bill was brought up. It would require you to officially copyright each doodle, concept sketch, client napkin drawing, preliminary works, final works, or even art done just for fun, with the copyright office of America. Can you imagine the cost of that?!
The ugly details of what could happen to you are in the letter.
Please read and think hard about what this could do to every creative industry not just the art, photography and design industries:
Dear [Congressman's name was inserted here],
As a constituent, a visual artist, and a small business owner, I am
writing to express my grave misgivings about S. 2913, The Shawn Bentley
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.
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/wex/index.php/Copyright#copyright:_an_overview
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.
For those and other reasons, I ask you to consider the harm this bill can
do to existing businesses and vote against it unless it is amended to
precisely define an orphan work as a copyright no longer managed by a
rightsholder.
Thank you for the opportunity to comment on the proposed Orphan Works
legislation.
Sincerely,
T. Kyle Gentry
The link for this letter which can be signed and sent to your states' congressman can be found here:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11323576
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Jacqueline Price
Posts:1
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| 05/14/2008 1:15 AM |
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Thank you for this letter. When I was in high school years ago there was a student that was 4 yrs my senior and was already in the professional field. He was a gifted artist (I have not yet seen any better) As I was graduating I was devestated to hear he stopped his art carreer. He had illustrated a childrens book and the publishers managed to small print all his rights away and he never made a dime. He was so devistated. When I went to college I really apreciated the care in the instruction that the teachers gave us on this topic. They warned us students of copy write laws and how we could protect ourselfs. this experience has left me very cautious. I am in canada i have not heard of any such legislation such as yours hear ( well not yet anyways)
thanks again
JPrice |
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betzhb
Posts:15
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| 05/14/2008 1:38 PM |
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| Thanks for passing this important information along to everyone. I found this link on Drawn.com, with forms for contacting legistlators to protest this law. Here is sorty on their front page and a the link - http://drawn.ca/ |
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Andrew
Posts:22
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| 05/14/2008 1:54 PM |
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Thanks so much for your post and letter. This is one of the many faces of corporatism, and the people affected most are those (like most of us) who do not have the resources to broadly protect our work.
Even if this bill gets pushed through, however, I think that it will be struck down in some Supreme Court case in the future.
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T. Kyle Gentry
Posts:25
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| 05/15/2008 10:04 PM |
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Okay so I got a reply from one of my Senators here in Florida about this and it says:
Dear Mr. Gentry:
Thank you for contacting me regarding copyright protection issues and the development of digital media.
As you know, many bills introduced in the 110th Congress address legal issues surrounding licensing, digital reproduction, and distribution of artistic works. As a pro-consumer Senator, I believe it is important that our laws adapt to new technologies, with the aim of increasing consumers' access to the widest possible range of digital media. At the same time, I support efforts to stop the illegal piracy of copyrighted materials and ensure that copyright holders are compensated fairly.
I appreciate hearing your views and will keep them in mind as this issue is debated before the Senate. If you have any additional concerns, please do not hesitate to contact me in the future.
Take it however you want. I don't honestly know if it did any good or not. At least he got it.
Any good interpretations on this?
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T. Kyle Gentry
Posts:25
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| 05/21/2008 7:56 AM |
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Okay so I got yet another lame response from my other state senator regarding this:
Dear Mr. Gentry:
Thank you for contacting me regarding the Orphan Works Act. I appreciate hearing from you and would like to respond to your concerns.
Patent rights and the protection of intellectual property are the fundamental building blocks of commerce and innovation in our country. I believe that artists and innovators should be fairly compensated for their work, and that reasonable efforts to find and reward these individuals should be made before allowing works to be used or copied by others.
On April 24, 2008, Senator Patrick Leahy (D-VT) introduced the Shawn Bentley Orphan Works Act of 2008 (S.2913). An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder. The establishment of the Orphan Works Act would provide restrictions and limitations to the remedies that could be awarded to those involved in copyright infringement that entail orphan works. This bill would require that the infringer takes diligent effort to locate the author of the infringed copy before using the work and require a Notice of Use to be filed with the Register of Copyrights before the work was used.
The bill specifies that monetary relief may not be made for damages, costs and attorney's fees, however reasonable monetary compensation can be made to the owner of the patent or copyright. Other limitations include that compensation may not be collected if the infringer is a non-profit educational institution, museum, library, archives, or public broadcasting entity. S.2913 was referred to the Committee on the Judiciary. Although I do not serve on this Committee, I can assure you I will keep your comments in mind as we proceed in the 110th Congress.
Representative Howard Berman (D-CA) introduced similar legislation (H.R. 5889) in the U.S. House of Representatives. H.R.5889 was referred to the House Committee on Judiciary, where it awaits further approval.
Again, thank you for sharing your views with me. If you have any additional questions or comments, please do not hesitate to let me know. In addition, for more information about issues and activities important to Florida, please sign up for my weekly newsletter at http://martinez.senate.gov.
All he did was parrot the bill back to me. This angers me to no end. The problem still persists, if the only way to protect yourself is to officially copyright every little sketch and doodle, family photo, song lyrics, rough draft etc. as well as final works, then we'll all go bankrupt. Evidently the current government considering this has no concept of how passive copyright is the foundation upon which our working lives are built with our artwork. Everyone write to your congressman and let em' know how harmful this can be. If they write back with the same lame responses I have gotten... write them again and point out the naivety they are displaying concerning the damage this will do to the freelance and small business majority in this country.
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Andrew
Posts:22
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| 05/21/2008 8:53 AM |
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You are always better off calling your Senator. Otherwise, you get form letters.
The best bet is to get a bunch of people to sign a petition and phone bank the Senate. Always be polite and respectful, even if you are angry.
There's a website where you can write a petetion and link people to it:
http://www.rallycongress.com/?gclid=CPHYg4rSt5MCFQ5THgodzChTCw
Sadly, the Congress is no longer interested in anything they perceive as an individual need.
Write it up and I'll sign.
:)
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T. Kyle Gentry
Posts:25
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| 05/21/2008 8:58 AM |
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Wow. Thanks so much for this information! I will be sure to give it a look and write something up appropriately. I will post on this thread when it's up.
Thank you! |
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Andrew
Posts:22
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| 05/21/2008 9:03 AM |
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My pleasure. I'm a pretty political person, and I have my fair share of nonsensical form letters.
:)
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