In Artists Rights, Copyright, Dark Archive, H.R. 5889, Illustrators Partnership, Orphan Works, S. 2913

Several artists have asked me to respond to a recent letter they received from John Schmelzer, President of the Graphic Artists Guild. In it, he gave his reasons for GAG’s endorsement of the House version of the Orphan Works Bill. GAG’s statements are quoted verbatim and in full. My responses follow.
– Brad Holland, Sept. 14, 2008

GAG: This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law. But that’s not the reality.

Response: Artists have no way of knowing what GAG considers “the best possible outcome for this legislation” because their lobbyist has asserted attorney client privilege, saying she can’t disclose “sensitive stuff.” However, some facts are on the public record:

• In 2005, 42 groups signed the Orphan Works opposition paper submitted by the Illustrators’ Partnership to the Copyright Office.
• GAG was not one of those 42 groups.
• GAG filed their own paper, endorsing the bill’s “legislative blueprint.”
• According to mandatory disclosures filed with Congress, GAG has paid their lobbyist $140,000 to support the House version of the bill:

GAG: The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.

Response: Since when does “getting real” mean artists have to sit still for being robbed? And since when does treating art as a business mean making excuses for theft? Do you have to be “put out of business” before you react to harmful legislation? Over 60 groups agree that this bill violates international copyright law, undermines artists’ rights and devalues their work. If that’s “a scare,” it’s a real one.

GAG: Orphan Works will not go away, because too many stakeholders are behind it.

Response: Orphan Works legislation doesn’t need to “go away.” It needs to be fixed. Make it a real orphan works bill. As for the special interests behind this one, they’re not “stakeholders.” They’re opportunists. They want to cut themselves in on our markets, and they’ve drafted a bill that will let them. It’ll be the stockhouse story all over again – only this time, you’ll be penalized if you don’t give your work to these “databases.” Who are the real stakeholders in this fight? We are – and we shouldn’t succumb to Stockholm Syndrome and embrace the logic of the bill’s backers.

GAG: Delaying passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version.

Response: No, opposing it in a principled manner and explaining to lawmakers why it’s bad gives us a chance to get a better version in the next Congress. Telling you to take a bad bill because the next one might be worse is like telling you to cop a plea to a crime when you know you’re not guilty.

GAG: By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues.

Response: “Negotiating realistically” doesn’t mean capitulation. It means proposing serious amendments, as IPA did July 11: As for having a “seat at the table,” what good does it do you if you don’t use it? If you give up the goal of protecting your rights to become part of the process, there’s a good chance you’ve become part of the problem.

GAG: For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle over Orphan Works.

Response: If the rights to your creative work aren’t worth fighting for, what is? Protecting your rights is always a “gamble.” But why bet against ourselves? As for that “position of respect” that “government circles” allegedly show us, if this bill is an example of it, maybe we should aim for the respect of being treated as worthy opponents.

GAG: The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get.

Response: It’s true that this bill is now so convoluted you’ll need a lawyer to explain it to you. That’s a big change from the current law, which protects your work by making it your exclusive property. This bill would force you to take active steps – like registering your work with a commercial database – not to actually protect it (because the database won’t protect it) – but merely to preserve your right to sue an infringer in federal court.

GAG: Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper, gift wrap, shower curtains, etc., from being covered under the legislation.

Response: It’s not clear why artists, writers, photographers, songwriters and others should be grateful that “wall paper, gift wraps, shower curtains, etc.” have been exempted. Is art on coffee mugs more valuable than medical illustrations, news photos, political cartoons, book illustrations?

The textile industry asked for an exemption only for themselves. They condemned the bill, saying it would do great damage. But as soon as they got the exemption, they endorsed it! It’s easy to see why they wanted to be cut out – it’s a lousy bill. But once they got out, why try to inflict the damage on others? Was there a quid-pro-quo? Did Congress force them to endorse the bill in return for exempting them? And if you’re the party that brokered a deal like that, why would you want to take credit for it? If this bill is so bad that manufacturers have to be spared, how does anyone justify telling artists to just “get real” and take it as an object lesson?

GAG: The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work.

Response: First, let’s translate “Notice of Use” into plain English. It means “Notice of Intent to Infringe.” An infringer would file his name and a description of the so-called orphan with an archive. As currently written, this would be a Dark Archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless a.) you discover you’ve been infringed; b.) you pay a filing fee and sue the infringer in federal court and c.) the infringer asserts an Orphan Works defense. Only then can you file a request to see if your work is in the Dark Archive. In other words, the Notice of Use is of no probative value to you at all, unless by sheer luck, you find out that you’ve been infringed and feel like risking a lawsuit. As for making the Notice public, what does that mean? It means you’d have to start each day by reading through hundreds of thousands of text descriptions of infringed works to see if any of the so-called orphans sound like pictures of yours.

GAG: The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.

Response: To repeat: over 60 creators organizations oppose BOTH bills:

GAG:I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues.

Response: If it’s not going to have “a dramatic influence on how we do business,” then why should it wake anyone up? In fact, if this bill passes, in the United States, your work can be used “legally” without your knowledge or consent. We think that’s pretty “dramatic” and it could have a dramatic effect on your business – whether you’ve “awakened” or not.

GAG: If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.

Response: We don’t think this is a time to lecture artists about business practices. No person or group can stop individuals from making poor business decisions. But letting government pass bad laws that will affect everyone – good business people and poor ones – is another matter. How many other businesses would sit back and surrender to a law that undermined their fundamental property rights? Dry cleaners or real estate brokers wouldn’t stand for it. Why should we? There’s no point in being an artists rights organization if you won’t defend artists’ rights.

GAG: Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last.

Response: We don’t see any way an “artists rights group” can build a “strong and vibrant industry” out of this bill, unless they plan to become one of the commercial databases this bill would set up. Orphan Works is the wedge issue of the anti-copyright lobby. If it’s successful, they’ll use it to widen the breach. Unless artists stand up for their own rights now – while they still have them – having a seat at the Orphan Works table won’t give anybody any clout for getting those rights back later.

GAG: We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.

Response: “Developing better business practices and standards” is always a good idea, but used in the context of this bill, the term is code for something else. The Orphan Works Act would set up gatekeepers for every industry. The gatekeepers would get to draw up the checklist of things infringers would have to check off before they infringed your work. Of course, the checklist will be presented to artists as an obstacle course for infringers – but in fact, it’ll be an obstacle course for YOU. Because it means you’ll have to take certain specific steps to preserve your right to sue infringers, and any clerical failure on your part, any oversight, will void your options.

There may be valid reasons for developing practices and standards for using the work of artists who have died or abandoned their copyrights; that would be a true orphaned work policy. But to warn working artists that they have to submit to new bureaucratic business practices so that potential infringers can freely use their unidentified works is a fundamental embrace of the anti-copyright agenda. That’s the truth and it should be understood as such.

– Responses by Brad Holland

Please feel free to forward these responses to any interested party.

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