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Orphan Works Act - bad for anyone doing ANYTHING creative

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Postby Gary Martin » Sat Jun 14, 2008 4:33 am


I may stir up controversy with this post but if I do, oh well...

Personally, I've had one moron decide to rip off my work to use on her for profit website and it was useful to have copyright law to fall back on to "encourage" Yahoo to make her remove my image from her website, the use of which was unauthorized to be certain :!:

On April 24, Senators Pat Leahy (D-VT) and Orrin Hatch (R-UT) and Representatives Howard Berman (D-CA), John Conyers (D-MI) and Lamar Smith (R-TX) introduced legislation (S.2913, HR 5889), which is now being referred to as the Shawn Bentley Orphan Works Act of 2008. It is virtually the same bill that was presented in 2006, and subsequently rejected by Congress. But now, they are trying again.

If passed, the Act would radically alter copyright laws, taking away the automatic copyright now guaranteed to artists of all types who create any type of work. Right now, under U.S. law, you are automatically guaranteed copyright on everything you create, from the sketches in your sketchpad to your best paintings and sculptures.

Under the Orphan Works Act, every creator will be required to register everything he or she creates in a private registry system, requiring a fee of course, and supposedly to make it easier for the "public" to search for works and contact the creators if they want to use the works for some purpose.

Everything created in the last 30 years will need to be registered through this as-yet nonexistent system, including those works already registered via additional fees with the copyright office. If they aren't, and some member of the public makes or claims "due diligence" to find the creator of a work and can't find him or her, that member of the public is entitled to use the work without any limitations, and artists will have no legal recourse other than to perhaps sue the turkey using the work. Gee, thanks a bunch for that help, Congress. That means every piece of work you have out there, especially online, would be open season for use by major publishing houses and businesses (Microsoft < who owns one of the largest online image databases> and Google have already voiced support for the bill and indicated they will use thousands of images) and everyone in between.

Proponents of the bill say it will assist the public in identifying and contacting creators of works and going through the proper channels to contact them to ask for permission. While we understand the need for an organized system of search, there are MAJOR FLAWS in the proposed bill that need to be addressed before any such proposal should take place. Here are a few points:

> Under this law, you would need to register every piece of work you create, including those works that you have already registered with the Copyright Office officially, in some system that does not exist and would likely require you to pay to do so. The time and cost to do this is likely going to be prohibitive for visual artists. While this is meant to apply to all types of creative works, including music and literary, visual artists will be impacted the most because of the sheer volume of work we create, making it very expensive to register everything you have ever created or will create. For the visual arts, there would still be little protection for you and your work, even if it is registered, because search tools would rely on names of artists or titles of work, and not image recognition tools, which are still in their infancy of development.

> Under this law, if you register your work, you would have to respond to EVERY inquiry sent to you for use of the work. So in other words, if you have a work out there in a registry system, and some person contacts you and says he wants to use your work for free on his Web site or in his new catalog, you would need to take the time to officially respond to every inquiry within a specified time limit, letting him know if you do not want to have him publish your work for free or at all for that matter. There have been some organizations who have contacted me about the use of my work who I have declined as I didn't care to have my work associated with the organization in question. This new law, from my perspective puts the onus on the artist/creator to stop it, not on the person wanting use it to prove that they have permission. This will take a lot of time and effort that we, as casual or professional artists and photographers, do not have. Then again, the unscrupulous will probably claim that they tried to contact and that you didn't respond you whether they did or not.


Last week, the House Judiciary Committee unanimously approved the bill, and yesterday, May 15, the Senate Judiciary Committee did as well. This means the bill will be presented to Congress, likely before the end of May.

FORTUNATELY, TO THE BEST OF MY KNOWLEDGE, THIS HASN'T HAPPENED YET :!:

Write to your representatives ASAP and let them know that you do NOT want this bill to be expedited, as it is now. Tell them we need a better solution, or tell them you don't want it at all:

One way to notify your representatives is via the link below:

http://capwiz.com/illustratorspartnership/home/

Personally, I happen to think that the Orphan Works Act is another piece of crap legislation promulgated by Washington bureaucrats who are only looking out for the interests of big business and their own political futures. Microsoft and Google can certainly afford to pay for their use of images. They're for all intents and purposes, the Exxon/Mobil of the internet and why should they get anything for free :?:

I would urge anyone who uses a camera on this website to take the opportunity to contact their representatives and complain vehemently about this legislation.
Last edited by Gary Martin on Sat Jun 14, 2008 7:57 am, edited 3 times in total.
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Postby Blacktphoto » Sat Jun 14, 2008 6:30 am


Thanks for the clear overview of this proposal Gary.

As if it wasn't hard enough to draw income from a market that becomes more and more saturated all the time, now legislators are providing a gateway for the unscrupulous and untalented.
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Postby WisKeeper » Sat Jun 14, 2008 7:42 am


This is shocking!

I am searching for the most appropriate letter on the web site you listed to send to my representatives. This website makes it really easy to compose and send a letter. It is important for your representatives to understand this issue. I encourage everyone to send a letter.
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Postby Paul » Sat Jun 14, 2008 7:42 am


Gary - I'd like to pass this info on to others using your words if this is ok with you. These people need to be stopped! The passage of this bill would be so unfair to all artists and photographers in this country!
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Postby Gary Martin » Sat Jun 14, 2008 7:52 am


Paul, be my guest. I would urge you to pass this on to whoever you feel it appropriate to send it to.

Both of my Senators and my Congressional Representative have all gotten letters from me this morning on the subject of the Orphan Works Act.

I do a tremendous volume of scientific writing. You can be sure that the publishing houses of the Journals that I publish in do not go forward with the publication of any scientific article until they have a signed CTA (Copyright Transfer Agreement) in hand to cover themselves.
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Postby WisKeeper » Sat Jun 14, 2008 7:59 am


I've sent my letter to my Senators and Congressperson. It is easy to do.
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Postby Gary Martin » Sat Jun 14, 2008 8:03 am


Thanks, Suzanne. I know Hersh and a few others already have as well. Hopefully, if they have a horde of irate constituents they'll get the message that this bill is STILL a bad idea.
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Postby Paul » Sat Jun 14, 2008 5:55 pm


I've sent my letter to my Senators and Congressman and I've also informed four friends of mine who are also photographers. Let's hope this bill dies and never becomes law!
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Postby TenofHearts12 » Sun Jun 15, 2008 12:59 pm


Thanks for the link; I have contacted my representatives as well.
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Postby jaymatt1978 » Wed Jun 18, 2008 12:50 pm


I'm not one to stir the pot, at least not on here, but I found this article which should AT LEAST be read: http://maradydd.livejournal.com/374886.html

I also found this link:http://www.copyright.gov/docs/regstat031308.html

Again it's just another point of view, I still tend to agree with Gary :)
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Postby Gary Martin » Wed Jun 18, 2008 2:16 pm


After reading her blog, I'm not inclined to change my position, nor am I at all clear what qualifications or expertise she has in the area of copyrights...

Guess I'll have to go read what the person from the copyright office had to say... I'm not bothered by "big words."
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Postby TenofHearts12 » Sat Jun 21, 2008 12:46 pm


The following is what I recevied from Senator Ben Nelson of Nebraska:

"Dear Gerald:

Thank you for contacting me and sharing your concerns regarding the Orphan Works Act, S. 2913. I understand this is a matter of great concern to you, and I appreciate having your perspective as the Senate considers this legislation.

This legislation was introduced on April 24, 2008, by Sen. Patrick Leahy. Orphan works are copyrighted works whose owners are difficult or impossible to identify and/or locate. Orphan works are perceived to be inaccessible because of the risk of infringement liability that a user might incur if and when a copyright owner subsequently appears. Consequently, many works which are, in fact, abandoned by owners are withheld from public view and circulation because of uncertainty about the owner and risk of liability. The Orphan Works Act includes many of the provisions laid out in a report from the Copyright Office to Congress prepared in 2006. My understanding of this legislation is that it is not intended to increase the risk of infringement of copyrights which are in active use by their holders or designees. Nevertheless, I understand that many have expressed concerns that such a risk of infringement might occur should this legislation pass.

On Thursday, May 15, the Senate Judiciary Committee voted unanimously to send this legislation to the full Senate for consideration. After the Committee's vote, Senator Leahy reiterated that the bill is intended to strike a balance between protecting the interests of copyright owners and potential users of orphan works, allowing Americans access to pieces of history without eliminating long-established copyright protections. At this point, it is unclear when this bill might come up for debate and discussion; but rest assured I will keep your thoughts in mind as I consider my vote.

Thank you again for sharing your thoughts. I always find it helpful to hear from individuals who are directly affected by legislation under consideration in Washington, and so I appreciate that you took the time to contact me. I hope you will not hesitate to do so again on any issue of importance to you."
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Postby Gary Martin » Sat Jun 21, 2008 2:13 pm


Interesting... I'm still waiting to hear back from my two Senators and Congressional representative. I would like to be optimistic and think that the slow response may be that they're researching the question, but perhaps that is too much to hope for.

Nevertheless, if we who ARE actively using/showing/exhibiting our work(s) protected by copyright have to go register it to continue that protection, then IMO Leahy's bill is a really large pain in the butt for artists, photographers, musicians, etc.
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Postby Biggy » Mon Jun 23, 2008 7:04 am


I just sent in my comments to my local and state representatives. It never ceases to amaze me how politicians will go out of their way to help major corporations earn their money and rob the country's citizens blind. Of course, we all know it has to be that way because it's those major corporations who provide those politicians the funds to conduct their BS campaigns. But ... we, as citizens who effectively will be robbed blind or artists put at a severe disadvantage, have the ability to speak up against these political BSers and let them know we're watching them.

Thanks for posting this, Gary.
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Postby Gary Martin » Mon Jun 23, 2008 3:15 pm


You're welcome, David, and you're right about the politicians having their hands out to corporate America. Any time Google says they're going to take advantage of something, ala using "orphaned" images, you can count on it not being good for the little people :!:
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