In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

Tuesday, Victor Perlman, attorney for the American Society of Media Photographers went to Washington to register ASMP’s opposition to the recent Orphan Works Report.

Last week, Vic phoned us and asked if he could speak for IPA as well. We sent him the letter we submitted to the Copyright Office last year and said he could tell Senators and Congressman that it expressed the opposition of the 42 arts organizations in the U.S. and throughout the world, and the nearly 2,000 artists who signed it.

Orphan Works legislation is being championed by museums, libraries, archives, foundations and Free Culture advocates, and there is concerted pressure on Congress to write the recommendations into law before the end of this session.

This legislation jeopardizes visual artists’ copyrights and robs artists of income. We need to make sure that lawmakers hear from the people who will be hurt by these harmful changes to the 1976 Copyright Act. To do this effectively, all illustrators and photographers need to make their voices heard. ASMP has already asked their members and others to commence a letter writing campaign to lawmakers.

We urge all artists to do the same, and to act quickly to express your opposition to your Congressional representatives. We wouldn’t ask unless it was vital. This is a make or break moment for artists, creative authorship, and the exclusive rights guaranteed to artists under U.S. Copyright Law and the Berne Convention.

For maximum impact, we urge visual rightsholders to fax letters on your letterhead. E-mails don’t carry the same weight, and neither do form letters. We are providing a sample letter for you, but we recommend you modify it with your own points, or write your own letter. We are providing the complete list of those to contact at the bottom of this message. Or you may wish to use the excellent resource of tools to simplify faxing to legislators graciously provided by ASMP at

— Brad Holland and Cynthia Turner
For the Board of the Illustrators’ Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

Re: Orphan Works Copyright Legislation

Dear (Senator or Representative) ____________________:

(Identify yourself and include a one or two sentence description of your specialty and/or affiliations) ____________________________________________________.

I’m writing to express my opposition to the conclusions expressed in the U.S. Copyright Office Orphan Works Report. The 1976 Copyright Act guarantees me as an artist the exclusive right to authorize or withhold reproduction of my work and to create derivative works. It guarantees this from the moment I fix the work in a tangible form, and it guarantees this without imposing formalities such as a copyright mark or registration. The Berne Convention for the Protection of Literary and Artistic Works forbids such formalities as a condition on my enjoyment and exercise of copyright. This is particularly important for visual artists because many works appear without credit lines or identifying information. The explosion of unauthorized posting on the internet has increased instances of unidentified work.

The Orphan Works provision constitutes a loophole that will jeopardize the copyrights of thousands of freelance artists such as me, and do so retroactively. Although the Orphan Works report states that it does not re-impose formalities, I fear that for all practical purposes the proposed amendment will have that effect.

All work created by all artists throughout the world, regardless of age, whether published or not, whether of U.S. origin or abroad, will be subject to orphan works claims.

The provision shifts the burden of diligence from the owner to the user. I see no practical way that I could monitor any potential infringement of my work in any publication or database anywhere within the reach of the internet. My creative work is one of the most personal forms of private property that I have because it wouldn’t exist without the specific expression that is the result of my outlook and experience. Nothing in the Orphan Works Report justifies the exploitation of my private property by others.

I’m also afraid the penalties provision is another glaring loophole for anyone who chooses to make payment for usage the option of last resort. Once a work has been published there is no certain way to establish a reasonable fee. Any user can offer any fee, and unless I’m agreeable to the offer I have no option but to file a prohibitively expensive lawsuit that would cost more than I could recover. I’m therefore afraid that this part of the Orphan Works provision would constitute a no-fault license to infringe.

Several times in the Orphan Works Report unvalidated assertions are made that orphan work has little or no commercial value. This is contrary to my entire professional experience. The work that I create constitutes a valuable inventory that I can license any time, now or in the future, as part of my day-to-day business. Nothing in the universal copyright conventions gives any user the right to devalue my inventory for their own gain.

I believe that the answer to those instances of users who wish to use genuine visual art orphan works be confined to the specific instances that have been identified, such as family photo restoration, genealogy research and historical archiving, and be handled with specific limited exemptions to the Copyright law, just as many other countries have done.

I ask you to reject any legislation that would further undermine copyright protection for artists.

Respectfully yours,
(your name)

Who to Fax
Before you start keying numbers, you might want to check ASMP’s tools for automating the faxing process. They can be found at

There are a lot of people to contact. For those for whom this is an unreasonable burden, we recommend you send to at least these:


• Senator Orrin Hatch, Chairman
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-6331

• Senator Patrick Leahy, Ranking Member
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-3479

• Congressman Lamar Smith, Chairman
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-8628

• Congressman Howard Berman, Ranking Member
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-3196

• and to your Senator, listed here:

• and to your Representative
He or she can be found by entering your state and zip code on this page:

The Senate Judiciary Committee

Arlen Specter – Pennsylvania – Fax (202) 228-1229

Orrin G. Hatch – Utah – Fax (202) 224-6331

Patrick J. Leahy – Vermont – Fax (202) 224-3479

Edward M. Kennedy – Massachusetts – Fax (202) 224-2417

Jon Kyl – Arizon – Fax (202) 224-2207

Joseph R. Biden, Jr. – Delaware – Fax 202-224-0139

Mike DeWine – Ohio – Fax (202) 224-6519

Herbert Kohl – Wisconsin – Fax (202) 224-9787

Dianne Feinstein – California – Fax (202) 228-3954

Lindsey Graham – South Carolina – Fax (202) 224-3808

John Cornyn – Texas – Fax (972) 239-2110

Sam Brownback – Kansas – Fax (202) 228-1265

Richard J. Durbin – Illinois – Fax (202) 228-0400

Tom Coburn – Oklahoma – Fax 202-224-6008

The House Judiciary Committee

F. James Sensenbrenner – Wisconsin – Fax (262) 784-9437

Henry J. Hyde – Illinois – Fax (202) 225-1166

Lamar Smith – Texas – Fax 202-225-8628

Elton Gallegly – California – Fax (202) 225-1100

Bob Goodlatte – Virginia – Fax (202) 225-9681

William Jenkins – Tennessee – Fax (202) 225-5714

Chris Cannon – Utah – Fax (202) 225-5629

Spencer Bachus – Alabama – Fax 202 225-2082

Bob Inglis – South Carolina – Fax (202) 226-1177

Ric Keller – Florida – Fax (202) 225-0999

Darrell Issa – California – Fax (202) 225-3303

Mike Pence – Indiana – Fax (202) 225-3382

J. Randy Forbes – Virginia – Fax (202) 226-1170

Louie Gohmert – Texas – Fax (202) 225-5866

John Conyers, Jr – Michigan – Fax (202) 225-0072

Howard L. Berman – California – Fax (202) 225-3196

Rick Boucher – Virginia – Fax (202) 225-0442

Zoe Lofgren – California – Fax (202) 225-3336

Maxine Waters – California – Fax 202-225-7854

Marty Meehan – Massachusetts – Fax (202) 226-0771

Robert Wexler – Florida – Fax (202) 225-5974

Anthony Weiner – New York – Fax (718) 520-9010

Adam Schiff – California – Fax (202) 225-5828

Linda Sanchez – California – Fax (202) 226-1012

This e-mail may be forwarded and/or posted in its entirety to any interested parties.

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