For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works.
Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation.
Therefore we’re asking all artists concerned with retaining the rights to their work to join us in writing.
You can submit letters online to the Copyright Office here.
Read the Copyright Office Notice of Inquiry.
Read the 2015 Orphan Works and Mass Digitization Report.
Here are the Basic Facts
“The Next Great Copyright Act” would replace all existing copyright law.
It would void our Constitutional right to the exclusive control of our work.
It would “privilege” the public’s right to use our work.
It would “pressure” you to register your work with commercial registries.
It would “orphan” unregistered work.
It would make orphaned work available for commercial infringement by “good faith” infringers.
It would allow others to alter your work and copyright these “derivative works” in their own names.
It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.
The demand for copyright “reform” has come from large Internet firms and the legal scholars allied with them. Their business models involve supplying the public with access to other people’s copyrighted work. Their problem has been how to do this legally and without paying artists.
The “reforms” they’ve proposed would allow them to stock their databases with our pictures. This would happen either by forcing us to hand over our images to them as registered works, or by harvesting unregistered works as orphans and copyrighting them in their own names as “derivative works.”
The Copyright Office acknowledges that this will cause special problems for visual artists but concludes that we should still be subject to orphan works law.
The “Next Great Copyright Act” would go further than previous Orphan Works Acts. The proposals under consideration include:
1.) The Mass Digitization of our intellectual property by corporate interests.
2.) Extended Collective Licensing, a form of socialized licensing that would replace voluntary business agreements between artists and their clients.
3.) A Copyright Small Claims Court to handle the flood of lawsuits expected to result from orphan works infringements.
In your letter to the Copyright Office:
It’s important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have “testified” that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.
So when writing, please remember:
- It’s important that you make your letter personal and truthful.
- Keep it professional and respectful.
- Explain that you’re an artist and have been one for x number of years.
- Briefly list your educational background, publications, awards, etc.
- Indicate the field(s) you work in.
- Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.
- Our copyrights are the products we license.
- This means that infringing our work is like stealing our money.
- It’s important to our businesses that we remain able to determine voluntarily how and by whom our work is used.
- Stress that your work does NOT lose its value upon publication.
- Instead everything you create becomes part of your business inventory.
- In the digital era, inventory is more valuable to artists than ever before.
If you are NOT a professional artist:
- Define your specific interest in copyright, and give a few relevant details.
- You might want to stress that it’s important to you that you determine how and by whom your work is used.
- You might wish to state that even if you’re a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.
– Brad Holland and Cynthia Turner
for the Board of the Illustrators Partnership
The Illustrators Partnership has filed multiple papers with the Copyright Office regarding this issue. You can download them from the Copyright Office website:
January 17, 2012
Orphan Works and Mass Digitization
Initial Comments February 3, 2013
Orphan Works and Mass Digitization
Reply Comments, March 6, 2013
Orphan Works and Mass Digitization
Additional Comments, May 21, 2014
The elites of this world will not be happy until we are all slaves to the State. This is no understatement nor is it some crazy theory. They are clearly not even trying to keep it secret anymore. This is a HUGE issue among many HUGE issues.
All who read this should take this very seriously.
This is very disturbing and discouraging. This could be the final nail in the coffin for many independent illustrators who sacrifice so much to continue working in an increasingly hostile marketplace.
This is not we,the body politic, who should form a state, it is about corporate interests paying to take the state from us and run it for their own purposes as in citizens united where politicians are being bought to sponsor laws like this…define elites precisely and state even more precisely …we are giving them power by not voting for the people who would protect our interests and therefore are enslaved by our own ignorance ….until we wake up one day without any rights…completely bought.
Your post is factually incorrect on many, many levels. It would be best if you actually informed yourself about some of the issues rather than simply deciding to scare people. See http://files.archivists.org/Copyright_Office_OrphanWorks_071015-2.pdf for an explanation of why orphan works reform is NECESSARY and why the proposed legislation DOES NOT GO FAR ENOUGH. The Society of American Archivists is also opposed to the legislation proposed by the Copyright Office, but at least they have read and understand it.
Our position on orphan works law hasn't changed since 2006 when we said this in testimony to the Senate Intellectual Property Subcommittee:
"We believe the orphan works problem can be and should be handled with carefully crafted, specific limited exemptions. A limited exemption could be tailored to solve family photo restoration and reproduction issues without otherwise gutting artists' and photographers' copyrights. Usage for genealogy research is probably already covered by fair use, but could rate an exemption if necessary. Limited exemptions could be designed for documentary filmmakers as well. Libraries and archives already have generous exemptions for their missions. If their missions are changing, they should abide by commercial usage of copyrights, instead of forcing authors to subsidize their for-profit ventures." http://www.judiciary.senate.gov/imo/media/doc/Holland%20Testimony%20040606.pdf
In 2008 we even proposed amendments to that effect.
But nothing in the new 234-page Copyright Office Report explains why the preservation of old work requires a law that would permit the widespread commercial infringement of new work by living artists.
Thank you for your letter.
there is this article circulating at the moment:
which is confusing people since yesterday, including me to be honest.
So I wanted to ask if you could clarify what is correct and what isn't?
Thank you so much!
Thank you for your note. I had a deadline yesterday and didn't see this guy's post until late in the evening. I'm afraid it's history repeating itself.
Back in 2008, we got the news that Congress was planning to release an Orphan Works bill that would be fast-tracked for swift passage. So we put out an advance warning.
Someone posted an attack on the Internet, saying that there was no bill and that we were just trying to scare people. We were right, of course, as events proved: the bill came out a few days later and it said what we said it would say.
But if we hadn't gotten a jump on it, they might have passed it before we could alert artists.
I'm afraid we'll be proved right again.
There is no bill yet, as I said on Will's podcast. But the Copyright Office has given Congress its recommendations for one. The heart of its report is a resurrection of 2008's failed Orphan Works Act.
That bill called for a return to copyright registration for every picture an artist wished to retain the rights to. Of course, registration would not actually protect your work – an infringer could still infringe you. But by registering it, you would at least preserve your right to sue in US federal court – if you could afford to.
Unregistered pictures would still be yours and in theory, clients would still have to get your permission to use them. But whenever an infringer concluded that he had made a "reasonably diligent" but unsuccessful effort to find you, then he could infringe your work as "orphaned." In that event, he would have to pay you only if you caught him, tracked him down and agreed to accept whatever money he was willing or able to pay you.
The Copyright Office has even suggested that there should be an orphaned symbol (similar to a © mark) placed on each newly-orphaned image. That would signal its availability as free art to other infringers. Some have called this a "come-and-get-it" symbol.
Our critic says the 2008 bill passed the Senate – which is true – so I guess the new Congress shouldn't have to waste time debating it again, right? He's repeating the account in the 2015 Copyright Office Report. But unfortunately, that account doesn't exactly tell the whole truth:
“The limitation on liability approach was thoroughly analyzed and unanimously adopted by the Senate in 2008, and in the [Copyright] Office’s view it best balances the benefits and burdens of interested parties."
"[T]horoughly analyzed and unanimously adopted…" Let's take a look at that:
The Senate conducted only one hearing on orphan works legislation, April 6, 2006. It lasted only an hour and a half and had only 6 witnesses. I know, because I was one of them. My Senate testimony is here: http://www.judiciary.senate.gov/imo/media/doc/Holland%20Testimony%20040606.pdf
There was only one Senator present throughout the entire session: Chairman Hatch. The Ranking Member came in and out, mostly taking photographs. In 2008 the Senate held no orphan works hearings at all.
The Senate passed S.2913, The Shawn Bentley Orphan Works Act Sept. 26, 2008 by a controversial backroom maneuver known as hotlining. This is a tactic that permits Senators to pass certain legislation "with little or no public debate." Critics charge that it allows them to sign off on legislation "neither they nor their staff have ever read."
Here's how the Capitol Hill newspaper Roll Call described the tactic:
"In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object — in some cases as little as 15 minutes. If no objection is registered, the bill is passed." (Emphasis added)
– "'Hotlined' Bills Spark Concern, Roll Call, Sept 17, 2007 http://www.rollcall.com/issues/53_27/-20011-1.html
In 2008 the subcommittee chairs tried to hotline their bill twice. But each time we contacted concerned senators and the bill was put on hold. The third time they hotlined it in the evening – after hours – the night of the first televised presidential debate between Obama and McCain.
With Senate offices closed, we got nothing but out-of-office recordings, and even the legislative aides we could reach by Blackberry told us they hadn't been given enough time to read the bill.
As we wrote at the time: What better way to pass a bill that was written in secret than to pass it while nobody's looking. http://ipaorphanworks.blogspot.com/2008/09/orphan-works-devils-own-day.html
The Senate bill died October 3, 2008 when the House failed to pass a companion bill.
In writing to the Copyright Office, it's probably best to refer to "orphan works proposals" instead of orphan works "bill."
But remember: the Office says there are several other visual arts issues that are "ripe" for legislation:
copyright small claims, resale royalties, and other forms of secondary licensing which most artists have never heard of. These are all included in their recommendations to Congress.
For instructions and sample letters you can go here: http://myemail.constantcontact.com/Artists-Alert–The-Return-of-Orphan-Works-Part-2—ARTISTS–LETTERS.html?soid=1102063090742&aid=DEeIBiwWgJ4
Thank you for writing, and I hope you'll take the time to write the Copyright Office as well.
Thank you very much for your elaborate response.
Another fine example of 'what you make isn't really yours, it's everybody's.'
It is theft on a grand scale .