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psyop63b
04-11-2008, 02:56 PM
With so much focus on Hollywood's plight over the issue of piracy, it's disturbing to know that the intellectual property rights of artists are being attacked.

http://mag.awn.com/index.php?ltype=pageone&article_no=3605

I encourage all artists to read this article, and pass it along to your colleagues!

Buexe
04-11-2008, 04:49 PM
This is a very serious issue and should not be treated lightly. Even as a non-american citizen this is relevant, because it sounds as if somebody could take your artwork to the US, make some profit without asking and you would have no chance in sueing him, if you have not registered your copyright in the US, correct?

DrFx
04-11-2008, 05:09 PM
So if the US ignores international law on copyright, does that mean other countries can ignore copyright for US works, too?
What a hurtful bill, it looks like US citizens' rights are up for grabs!

davius
04-11-2008, 05:14 PM
China already do something similar this with books - if you don't register your work THERE, they can copy and sell it freely. That's the reason Paulo Coelho (Brazilian writer) likes to releases his books there first.

In my opinion, this is just sick - the big-fat Hollywood companies use the image of the poor content maker to fight piracy, but when the time comes to REALLY stand for mind behind the creations, they turn their backs. To me, it's just another way to capitalize on people with nothing but their creativity and love for making art.

mushroomgod
04-11-2008, 05:29 PM
theres been alot of talk about this, let face it...if i happens and its as bad as its made out in that article allot of us, or anyone who produced creative output is seriously f***ed.

And the people who are good at what they do (ie the best of the best) will be ripped of again and again because the person/company who ripped them off only needs to say it was orphaned and they could find no record of it being registed.

Oh dear....

KidderD
04-11-2008, 05:41 PM
It would be one thing if there was "1" international registry. And even that would be bad enough at $5/image... more like $.01/image would still be ludicrous! (I should have to pay to create my work? What!?!). But, how in the hell could anyone possibly register with all the private corporations!

This is the biggest load of crap I have ever read. I am Canadian, and I will be writing my MLA about this. To know that someone can just take my creation.

Imagine this, you've just spent 2 months working on this effects sequence, you go to submit it to a client, the client goes out and finds one registry you haven't registered with, and then just takes your work from you without paying you the other 1/2.(because no one in their right mind would have started this project without at least 1/2 upfront)

And there is nothing we can do about that?

apocalypse2012
04-11-2008, 06:19 PM
For the benefit of objectivity...

http://www.copyright.gov/docs/regstat031308.html


Orphan Workshttp://www.copyright.gov/images/blank.gif
http://www.copyright.gov/images/blank.gif
Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts,
the Internet, and Intellectual Property,
Committee on the Judiciary

United States House of Representatives
110th Congress, 2nd Session

March 13, 2008

The “Orphan Works” Problem and Proposed Legislation

Chairman Berman, Ranking Member Coble, and Members of the Subcommittee, I am pleased to appear before you today to testify in support of orphan works legislation. Like you, I believe it is important to address orphan works because they are a problem for almost everyone who comes into contact with the United States copyright system. Moreover, they are a global problem. Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries.

In my testimony, I will briefly explain the scope of the orphan works problem and why it is so important to provide relief—important not only to the copyright community but also to the public discourse. I will then turn to the challenge of how best to craft a solution that will move some copyright users forward without moving copyright law and copyright owners backwards. I am certain that this is possible.

The Orphan Works Problem

As you know, in 2005, with direction from this Subcommittee and the Senate Subcommittee on Intellectual Property, the Copyright Office conducted a comprehensive investigation of the orphan works problem. In 2006, we published our findings and recommendations in a study entitled Report on Orphan Works (http://www.copyright.gov/orphan/). The Report documents the nature of the orphan works problem, as synthesized from the more than 850 written comments we received and the various accounts brought to our attention during three public roundtables and numerous other meetings and discussions.

We heard from average citizens who wished to have old photographs retouched or repaired but were denied service by the photo shops. Unfortunately, if those photographs were taken by professionals (for example, wedding photos), the photo shops' actions make sense under the current law: they know that the photographer, not the customer, probably holds the copyright in the photograph. They ask the customer to produce evidence that the photographer has agreed to allow the reproduction of the photo (which will be necessary to retouch or repair the photo). But of course the customer has no idea who the photographer at his parents' wedding was, or quickly hits a brick wall when attempting to track that person down. Many other examples were presented to us as well, from museums that want to use images in their archival collections to documentary filmmakers who want to use old footage.

In fact, the most striking aspect of orphan works is that the frustrations are pervasive in a way that many copyright problems are not. When a copyright owner cannot be identified or is unlocatable, potential users abandon important, productive projects, many of which would be beneficial to our national heritage. Scholars cannot use the important letters, images and manuscripts they search out in archives or private homes, other than in the limited manner permitted by fair use or the first sale doctrine. Publishers cannot recirculate works or publish obscure materials that have been all but lost to the world. Museums are stymied in their creation of exhibitions, books, websites and other educational programs, particularly when the project would include the use of multiple works. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude certain manuscripts, images, sound recordings and other important source material from their films. The Copyright Office finds such loss difficult to justify when the primary rationale behind the prohibition is to protect a copyright owner who is missing. If there is no copyright owner, there is no beneficiary of the copyright term and it is an enormous waste. The outcome does not further the objectives of the copyright system.

More than one phenomenon has contributed to the orphan works problem. Digital technology has made it easier for a work or part of a work (such as a sound recording or a “sample”) to become separated from ownership or permissions information, whether by accident or through deeds of bad faith actors. Business practices have furthered the publication of works without any credit of authorship or copyright ownership, as in the publication of photographs in some advertising contexts.

Sweeping changes to copyright law in the past 30 years have also contributed heavily to the problem. On January 1, 1978, the date on which the Copyright Act of 1976 became effective, the United States dramatically relaxed the requirements of copyright protection in order to move to a system that fulfilled the standards of international conventions. In doing so, we moved away from the highly formalistic system we had for the first 188 years of our copyright heritage.

The Copyright Act of 1976 changed several basic features of the law. First, copyright protection became automatic for any work of authorship fixed in a tangible medium (e.g. on paper, on tape, in a computer file) and registration with the Copyright Office became optional. (Registration was retained only as a requirement of filing suit in a U.S. District Court and as a condition of collecting statutory damages and attorney's fees.) To reduce the possibility of a work falling into the public domain because of failure to publish without a copyright notice, the new law contained liberal curative measures.

Second, it changed the term of copyright protection for new works to a period of the life of the author plus an additional 50 years after the author's death. Prior to this change, the term had been bifurcated. An initial term of protection was available for 28 years, then a renewal term was available for another 28 years, but only upon affirmative application to the Copyright Office. In 1978, the renewal term for pre-1978 works was extended to 47 years and in 1998 it was extended again, to 67 years. In 1992, “automatic renewal” was instituted, removing from the law the requirement that renewal claimants file applications with the Office. Until this time, in practice, only a small percentage of copyright claims had ever been renewed, leading to earlier injection of works into the public domain.1 (http://www.copyright.gov/docs/regstat031308.html#1) In 1998, under the Sonny Bono Copyright Term Extension Act, we extended term to a period of the life of the author plus 70 years. In practice, for an author who creates while young and lives a long life, this could easily mean 125 years of protection or longer.

We made additional changes to our copyright law when we joined the Berne Convention, which prohibits formalities that interfere with the exercise or enjoyment of copyright protection. In 1989, the United States loosened the requirement that all works be registered as a condition of filing suit, making it inapplicable to foreign works. We also rescinded the condition that a published work must contain a proper copyright notice; thus, a common means of verifying the year of publication and the name of the copyright owner became less available. Finally, on January 1, 1996, under the Uruguay Round Agreements Act, we recognized millions of copyrights in foreign works that had been previously in the public domain because of failure to comply with the formal requirements of U.S. law, such as registration, publication with notice, and lack of copyright relations with the work's country of origin.

The Proposed Solution

In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work. We also rejected proposals that would have limited the benefit of orphan works legislation to certain categories of works or uses. Both commercial and noncommercial users made compelling cases; moreover, these parties often collaborate on projects and both need the benefit of the law. Likewise, we concluded that there were significant problems with respect to all categories of works: published, unpublished, foreign and U.S. works.

Instead, we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner. As defined in our Report, reasonable compensation should be the amount “a reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.”2 (http://www.copyright.gov/docs/regstat031308.html#2) Such a recovery is fair because it approximates the true market value of the work. It allows a copyright owner to present evidence related to the market value of his work and, at the same time, allows the copyright user to more precisely gauge his exposure to liability. Statutory damages would not apply to use of an orphan work. (The Office agrees with copyright owners who have since suggested that an award of attorney's fees might make sense in certain instances where an orphan work user acts in bad faith.)

That said, we stress that statutory damages would not be off the table perpetually. If an owner were to emerge, his legal ownership of the copyright in his work is unchanged. Full remedies, including full statutory damages, would be available against new users and, indeed, against the original user making a new, subsequent use. It is a basic tenet of the proposal that subsequent uses may not be based on stale searches, thereby increasing the probability that an owner may be found.

The Copyright Office proposed one exception to the basic rule of reasonable compensation, which is a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement. We believe that this provision is a critical piece of the orphan works solution.

In most instances, we expect that the kind of uses that fall within the safe harbor will be made by museums, archives, universities and other users acting for cultural or educational purposes. In order to effectively bring important material to light, these users may need an additional safety net. For example, in the case of a local historical society seeking to make multiple orphan photographs available on its website or in a pamphlet, it is possible that reasonable compensation, in the aggregate, would still prove onerous. Such uses are in the public interest, and they will rarely conflict with the normal exploitation of the work or conflict with the legitimate interests of the copyright owner.

Finally, we note that injunctive relief is limited under our proposal. If a user has added significant new expression, we do not support the availability of an injunction, provided, however that the user pays reasonable compensation. If the user has not added significant new expression, we support the availability of an injunction with the caveat that a court be instructed to account for any harm to the extent practicable, in order to mitigate the harm resulting from the user's reliance.

Response of the Copyright Community

The Office received broad support for its Report and proposed solution, with the exception of photographers and some other owners of visual content. However, despite their opposition to legislation, visual artists have openly acknowledged the magnitude of the orphan works problem in their own community. One concern of photographers is that their works are sometimes perceived to be orphans when they are not really orphans. This is because photographs and other images are often published without credit lines or copyright notices. They do not always have metadata or watermarks. Certain categories of images are not routinely managed or licensed. These are genuine problems, but they are in fact the very essence of the orphan works problem.

Some who oppose orphan works legislation have also objected to the removal of statutory damages, which are available under Title 17 in certain instances. A few have even asserted that statutory damages are an entitlement under the law that cannot be rescinded. We disagree. Statutory damages are an alternative means by which a copyright owner may recover against an infringer in lieu of proving actual damages and lost profits. However, they are only available if the owner has registered the work prior to the infringement or within three months of publication. (While it is possible that a registered work could be an orphan work within the proposed legislative framework, we think this is unlikely to be a common situation, not because the registration is guaranteed to be found, but because an owner who has taken steps to register his work has likely taken other steps to make himself available outside the registration system.) Statutory damages are not an absolute entitlement any more than copyright ownership itself is an absolute right. Just as there are exceptions to, and limitations on, the exclusive rights of copyright owners (for example, fair use), there are exceptions to statutory damage awards. In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements by nonprofit educational institutions, libraries, archives and public broadcasters, the court may reduce the award to zero.3 (http://www.copyright.gov/docs/regstat031308.html#3) The fact remains that the possibility of statutory damages, however remote, is the single biggest obstacle preventing use in orphan works situations. In cases of non-willful infringement, statutory damages may be as high as $30,000 for each infringed work. In cases of willful infringement, they may be as high as $150,000 per infringed work.

We are not suggesting, in general, that the scheme of statutory damages is unjust. On the contrary, statutory damages fulfill legitimate and necessary purposes. That said, we do believe that in the case of orphan works, the rationale for statutory damages is weak. By definition, in the orphan work situation, the user is acting in good faith and diligently searching for the owner, and the owner is absent. The purposes of statutory damages, i.e. making the owner's evidentiary burden lighter and deterring infringement, weigh less heavily here. If the copyright owner is not identifiable and cannot be located through a diligent, good faith search, we believe the appropriate recovery is reasonable compensation. If orphan works legislation does not remove statutory damages from the equation, it will not motivate users to go forward with important, productive uses. On the other hand, the prospect of orphan works legislation may motivate some owners to participate more actively in the copyright system by making themselves available.

...
(additional paragraphs deleted to fit into maximum text length, follow link for the full text.)

Conclusion

In closing, we note that millions of orphan works are precluded from productive use by authors, publishers, filmmakers, archives, museums, local historical societies and other users, despite the fact that the copyright owners may never be found. The solution that the Copyright Office has proposed reflects the realities of the problem and creates a framework for limited use. It does not create an exception; nor does it rescind an owner's copyright rights. We look forward to orphan works legislation and we are available to assist that goal in any way we can.



1. A 1961 Copyright Office study found that fewer than 15% of all registered copyrights were renewed. For books, the figure was even lower: 7%. See Barbara Ringer, 'Study No. 31: Renewal of Copyright' (1960).

2. See also Davis v. The Gap, Inc., 246 F.3rd 152 (2d Cir. 2001).

3. 17 USC § 504(c)(2).

4. The briefing included the following companies: Copyright Clearance Center, DigiMarc, Google, InfoFlows, PicScout, and PLUS. Audible Magic and Corbis could not attend but contributed materials.

mushroomgod
04-11-2008, 06:23 PM
It would be one thing if there was "1" international registry. And even that would be bad enough at $5/image... more like $.01/image would still be ludicrous! (I should have to pay to create my work? What!?!). But, how in the hell could anyone possibly register with all the private corporations!

This is the biggest load of crap I have ever read. I am Canadian, and I will be writing my MLA about this. To know that someone can just take my creation.

Imagine this, you've just spent 2 months working on this effects sequence, you go to submit it to a client, the client goes out and finds one registry you haven't registered with, and then just takes your work from you without paying you the other 1/2.(because no one in their right mind would have started this project without at least 1/2 upfront)

And there is nothing we can do about that?

I could be wrong...and I hope I am but...

lets take cgtalk as an example, users of the forum post 1000s of images (a day probably), from sketches to final renders just for feedback. Are these images/movies protected from somone who wants to steal them? If its not protected, or we have to regester/pay to protect every simgle image before we post then thats practicaly the end of cgtalk.

I hope Iv got that wrong.

BigPixolin
04-11-2008, 06:23 PM
Imagine this, you've just spent 2 months working on this effects sequence, you go to submit it to a client, the client goes out and finds one registry you haven't registered with, and then just takes your work from you without paying you the other 1/2.(because no one in their right mind would have started this project without at least 1/2 upfront)

And there is nothing we can do about that?

Put a big fat ugly watermark on it until you get payment.

mmkelly011881
04-11-2008, 06:28 PM
it's orphan works fellas.. put your name/email address in the bottom right corner and you're all set.. they can't use the stuff if they know who made it

read the report
http://www.copyright.gov/orphan/orphan-report.pdf

page 129


“If the user performs a reasonably diligent search and cannot locate the owner, it

can go forward with the use. It would be required to provide appropriate attribution to

the author and owner, if it knows their identities, in the derivative work it is creating. It

should also be prepared to pay reasonable compensation to the owner if she surfaces and

makes a claim for infringement, given that in most cases the use will be commercial and

not eligible for the elimination of monetary relief for noncommercial uses. The user can

be confident, however, that if the owner surfaces – even at an inopportune moment like

the middle of filming of a motion picture – the user will be able to continue to prepare

and exploit the derivative work under our recommendation, provided it pays reasonable

compensation and makes reasonable attribution to the author and owner.”

P_T
04-11-2008, 06:29 PM
They really gotta stop all these "one solution fits all" laws.

lostpencil
04-11-2008, 06:30 PM
Oh my! I'm hoping that this is either a hoax, or a misunderstanding, or something else... But it isn't, is it? It's unbelievable. I too, am a Canadian and this possibility greatly distresses me (I can imagine how it would distress/infuriate my US artistic neighbors) - and I don't get distressed easily.

Basically our livelyhood and artistic freedom is at stake. In fact, I would suggest that 'art' is at stake. If this passes we may as well just give up creating anything artistic (I think you are right, if this assessment of the proposed legislation is right, cgtalk would either end up being imageless or extinct). To think that you would have to pay *any* amount of money for each of your creations and then make sure you register it with *every* registry is absolutely insane! Not only that, you would have to police the registries - how many man hours would that take (bad enough wading through all my spam!)?

I've already written my MLA. I think this is a problem not only local to the United States, but an international concern. It's definitely worth fighting against.

lostpencil
04-11-2008, 06:31 PM
Adding an email/name on your image? All someone has to do is remove it.

KidderD
04-11-2008, 06:34 PM
Put a big fat ugly watermark on it until you get payment.

I find the clients really like to see that.

So, what do I need to have two copies of my renders or even my videos?

SanjayChand
04-11-2008, 06:34 PM
If those goes through, im either:

1. Taking down my images.
2. Putting a very large watermark somewhere on all of my images.

CKPinson
04-11-2008, 06:39 PM
Kidder is right- even $.01 is pathetic! International Registration should be EASY and FREE! Unfortunately a large part of the artistic community that I've met have a very limited budget (in the USA) and lack of knowledge of copyright laws. This is a MUST read IMO. THIS INFURIATES ME!!! You have to pay for your own supplies, you have to pay for your own training (with time or money), and you have to pay for your own name now!

mushroomgod
04-11-2008, 06:40 PM
it's orphan works fellas.. put your name/email address in the bottom right corner and you're all set.. they can't use the stuff if they know who made it

read the report
http://www.copyright.gov/orphan/orphan-report.pdf

page 129


“If the user performs a reasonably diligent search and cannot locate the owner, it

can go forward with the use. It would be required to provide appropriate attribution to

the author and owner, if it knows their identities, in the derivative work it is creating. It

should also be prepared to pay reasonable compensation to the owner if she surfaces and

makes a claim for infringement, given that in most cases the use will be commercial and

not eligible for the elimination of monetary relief for noncommercial uses. The user can

be confident, however, that if the owner surfaces – even at an inopportune moment like

the middle of filming of a motion picture – the user will be able to continue to prepare

and exploit the derivative work under our recommendation, provided it pays reasonable

compensation and makes reasonable attribution to the author and owner.”

1st part..
Adding a watermark is fine.but lets say said image somewhere along the line (maybe via a website) gets cropped and along with said crop the watermark goes missing, all somone needs to say is that there was no watermark, its going to be very hard to prove its a lie. Although I dont know enough about digital watermarks, I think they can be added, are next to invisible and very hard to remove?

2nd part 129...
Open to way to much abuse.

The problem is with both of these is that under the current rules it works...why change it, and it works in our favour (ie the people who produce the artwork), which is how it should be.

I see this as a form of blackmail.

KidderD
04-11-2008, 06:50 PM
I would also like to hear from software companies. Autdoesk, Softimage et al. Something like that hurts us is going to impact them as well, and they already live in a world of tight margins. Even CGSociety must have some kind of stance? Where?

Also if anyone knows of how I can actually act against this please post it here.

For the US, I found an audio that had a listing for action, as this has been tried for the last few years and failed. Joining this email list is joining a group of 42 US and international groups opposed.

illustratorspartnership@cnymail.com (http://forums.cgsociety.org/illustratorspartnership@cnymail.com)

Audio Interview
http://www.sellyourtvconceptnow.com/orphan.html

KidderD
04-11-2008, 06:59 PM
If you listen to the founder of this mindnumbing idea, Peter Jaszi http://www.wcl.american.edu/faculty/jaszi/ , you will read that he beleives that, since every artist, derives inspiration from other artists before him, therefore they shouldn't own their own ideas/art. Essentially all art should just belong to the public domain.

Well how about professional engineers, they only build on the designs of others, then I guess they shouldn't charge for their designs either. I would like to see them try to include them into the mix, that would make for a short congress hearing.

Proud once again to be Canadian

P_T
04-11-2008, 07:07 PM
This kinda reminds me a big road near my area. There used to be 3 lanes each way and the state government decided to "upgrade" it. First they made an additional underground tunnel with the help of foreign investors and charge people for its use. Now they made a bus lane and widen the footpath. Now we end up with a 1 lane each way. During morning rush hour, it's pretty much impossible to drive through that road so people are forced to pay to use the tunnel or be late to work.

Basically, governments create a "solution" that you have to pay for, then create a problem to justify the existence of that "solution".

TheANIMAL
04-11-2008, 07:21 PM
I sometimes like to put my name and watermark into the picture, as a feature of the picture, not just as a watermark. I guess it can't be doen for Client work, but its one quite good way of getting around the problem.

RobertoOrtiz
04-11-2008, 07:22 PM
Well here is my personal take on this...

This is MY OWN opinion BTW...

With this law,
The lifetime work on an artist could simpy become clip art.

Imagine a fat russian trillonaire making royalties of all your anatomy pieces.
Now imagine trying to tell him that you want your artwork back....

The new rules puts the burden of proof of ownership on the artist, insted of the person who is using the material.

Before a corporation had to prove that they had rights to use a piece of art for anything.

With the new rules they can claim that the piece of art was an orphan work that they found online. The burden of usability rights would now fall on the artist, and they would have to register and go after the people who use their work illegally.

Think about that for a minute.

Or worst yet, a corporation can do a web sweep (similar to what is happening right now with web domains) and register THOUSANDS of pieces they "found".

They could have "orphan maker factories" of people who would be paid pennies a day to go and scan, photograph and copy art work and then claim it.

They could conceivably go to one of your exhibits, take hi-rez pictures of your work, register the pieces and voula make money off them.....

It would be YOUR responsability to go and check all these new registration companies to see that your work is not being claimed illegally.

Imagine having to do a DAILY check to see that your work is not being claimed by another artist on the top 10 image registration companies..
God I hope I am wrong...

BTW DIGG away to spread the word....
http://digg.com/design/You_Will_Lose_All_The_Rights_to_Your_Own_Art_Photo s (http://digg.com/design/You_Will_Lose_All_The_Rights_to_Your_Own_Art_Photos)

KidderD
04-11-2008, 07:31 PM
You know what, I am not against having to register my art, even at my expense so be it, the cost would just have to be passed on to the client. But, if you read the current legislation, all the onus is on the owner of the artwork, to search all these registries, which by current legislation, there is no limit on how many "privately owned" registries (so what I search daily to make sure no one is using my work). And then say I do find someone who is using my work, I have to locate them, contact them, find out who they work for, (remember potentially another country) and then "politely" ask them for fair compensation. Now if they refuse, I have to take them to federal court, where btw, according to the legislation, I am not able to get my court costs covered even if I am awarded punitive, not to mention again, could in another country. And, I'm not talking like lost cause China here, say another G8 country even.

The only thing positive that I have read so far, is that this hasn't passed, and there is a growing support to squash the newly rewritten legislation. And how any artist could support this is still very beyond me, my eyes and ears are open though, how could this possibly benefit the content creator.

lostpencil
04-11-2008, 08:12 PM
I was born in Europe under the Communist regime. Seeing this bill and understanding that it is founded on Marxism and post modern nonsense helps me to remember why my parents brought our family out of that festering regime and into democracy. It's amazingly frustrating to see the same communist ideas infiltrate the heart and core of democracy, the United States. It just plain makes me sick and angry. If you haven't listened to the audio segment that KidderD posted - please do... we all have so much to lose if this bill passes.

Venkman
04-11-2008, 08:12 PM
If you listen to the founder of this mindnumbing idea, Peter Jaszi http://www.wcl.american.edu/faculty/jaszi/ , you will read that he beleives that, since every artist, derives inspiration from other artists before him, therefore they shouldn't own their own ideas/art. Essentially all art should just belong to the public domain.

This "Professor of Law" should ask some "Professors of Art" what they think about his shenanigans. He might get a well deserved punch in the nose.

tatiana
04-11-2008, 08:22 PM
There is another thread with additional links and info that was started by Segvoia last month over in the General Discussion section...in case anyone wants some additional POV and discussion insights.. :)

http://forums.cgsociety.org/showthread.php?f=2&t=609199

t

swardson
04-11-2008, 08:35 PM
I have contacted my representative about this and encourage everyone here to do so as well.

I will let you know if I hear anything back but until then let's get this out as far and as fast as we can.

-Brad

RobertoOrtiz
04-11-2008, 08:49 PM
Ok guys I found this...


Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners
and Users (Video webcast )

from Thursday 03/13/2008

http://judiciary.house.gov/oversight.aspx?ID=427

And here is a great blog with current information:
http://orphanworks.blogspot.com/ (http://orphanworks.blogspot.com/)

tatiana
04-11-2008, 08:55 PM
Ok guys I found this...


Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners
and Users (Video webcast )

from Thursday 03/13/2008

http://judiciary.house.gov/oversight.aspx?ID=427

This PDF is an outline of the above webcast that Roberto posted:
judiciary.house.gov/media/pdfs/Perlman080313.pdf

Stevemoh
04-11-2008, 08:56 PM
I think there's an element to this that they are underestimating. I believe to a certain extent we can self govern this if it were to go through. If I find out that Corbis or other companies are engaging in this practice then I will not purchase anything from them again.

Rebeccak
04-11-2008, 08:59 PM
I think there's an element to this that they are underestimating. I believe to a certain extent we can self govern this if it were to go through. If I find out that Corbis or other companies are engaging in this practice then I will not purchase anything from them again.I agree with this - I can't see how if corporations like Corbis, Getty etc. mass appropriate photos / artwork from sites like Flickr etc., then sites like Flickr will continue to exist.

I guess the problem lies in that sites like Flickr are so huge, that even if many photos are appropriated, it won't affect the majority of users.

Going back to what Stevemoh was saying, think about the foodchain that this will affect - museums, gallery owners, online schools, companies that own sites like Flickr (Yahoo), YouTube, etc. - all of these entities surely have a stake, and aren't voiceless.

I mean, under the scenario of virtually any content being 'orphan works', can't you just appropriate anything that you see on network television and claim it as your content? I can't see any difference between that and ripping off work from someone's website. Both kinds of content are easy to trace back to their creators, yet if the law turns a blind eye to the kind of deliberate content theft being suggested here, then all content is in essence free under this kind of legislation. It's the same as reading a book and claiming it's yours because you didn't bother to look at the cover to see its author.

tatiana
04-11-2008, 09:20 PM
Some additional information and commentary via the ASMP (American Society of Media Photographers):

"...It has become clear is that some Orphan Works law is likely to be passed sooner or later. Key members of the House and Senate want it; significant user groups such as museums, academic institutions and publishers want it; and the general public wants it. ASMP understands the need for, and welcomes, a solution to the Orphan Works problem. Our objective has never been to defeat Orphan Works legislation as such. Rather, our goal is and has always been to make sure that any Orphan Works bill is fair to visual artists. In addition, it appears that the political environment this year is substantially more favorable to creators than it is likely to be over the next few years. These factors make it important for ASMP to help craft an Orphan Works bill that treats photographers and other visual artists fairly, and to support the passage of a fair and workable bill in this Congress."

and

"...In terms of drafting, we are proposing to limit the scope of the Orphan Works defense to:


Uses by individuals for non-revenue producing personal or community purposes, including uses on websites that do not generate revenues for the individuals using the Orphan Works;

Uses in works of non-fiction, such as books, articles or documentary films or videos;

Uses by non-profit educational institutions, libraries, museums or archives qualified for treatment under ¤501(c)(3) of the Internal Revenue Code as amended


in exhibits, including website displays, and
for uses that produce revenues and that are ancillary to exhibits.

In a nutshell, we see little financial harm to creators from the non-profit and non-fiction uses of orphaned images. At the same time, we want to make sure that commercial users of images and illustrations would not be able to use an Orphan Works defense as a free pass to profit from infringements."


http://www.asmp.org/news/spec2008/orphan_update.php

mushroomgod
04-11-2008, 09:50 PM
we want to make sure that commercial users of images and illustrations would not be able to use an Orphan Works defense as a free pass to profit from infringements."


theres the important line right there. I agree 90% with that statment from ASMP.

Uses in works of non-fiction, such as books, articles or documentary films or videos;

and thats the 10% I dont agree with, do they mean non fiction/non profit books? because there are more non fiction publications than fiction publications for sale at borders

Maverynthia
04-11-2008, 10:13 PM
I think there is some stuff here that's covered up:

We disagree. Statutory damages are an alternative means by which a copyright owner may recover against an infringer in lieu of proving actual damages and lost profits. However, they are only available if the owner has registered the work prior to the infringement or within three months of publication. (While it is possible that a registered work could be an orphan work within the proposed legislative framework, we think this is unlikely to be a common situation, not because the registration is guaranteed to be found, but because an owner who has taken steps to register his work has likely taken other steps to make himself available outside the registration system.)

So we only have recourse IF IT WAS REGISTERED. Or 3 months in publication. Which comapnaies can officially publish a book and just hold onto it so the people can't see what's in it. That is if that person has registered it...

DeVangiel
04-11-2008, 10:23 PM
This is really bad everyone:sad: we all need to fight this for our livelihoods. Just starting out in this industry, I can't imagine having to pay money I don't have for works I haven't created, or songs I haven't written yet. If this passes, I'll have to go back to working as a brick mason:cry: ....
In fact, if this passes, many of us artists and designers in the United States and Europe may have to go back to those "labor intensive" jobs, just to make the money we need to pay the legal fees we'll incure trying to stop people from stealing our works.

DeVangiel
04-11-2008, 10:58 PM
Canada, I've found, has an office....the Canadian Orphaned Works Beuro, I think that's what its called....

If you want to use an orphaned work, you go to the office, THEY do a search for it, and if it's not licensed, you can use it.

Not being from Canada, I don't know how well this works. So if any fellow artists from there know if this works well up there, please let us know.

It seems that something like this would work much better than.....well....this piece of garbage.

Grim Beefer
04-11-2008, 11:04 PM
This is article is chock full of hyperbole and wild accusations, but light on background, evidence, scope, and pragmatism.

For example, an outright falsehood is the alluded (but not cited) "international law" that "forbids coerced registration as a condition of protecting your copyright", and generates the consequence that "The United States is about to break international law by making us register our works". He is referring to the Berne Convention For the Protection of Literary and Artistic Works (http://www.cni.org/docs/infopols/US.Berne.Convention.html), which only affects being able to enforce obligations on foreign copyright owners. It has no effect whatsoever of the United States enforcing copyright regulations on it's domestic citizens (see here (http://williampatry.blogspot.com/2005/06/berne-convention-in-perspective.html)). This is important because he bolsters his argument several times by appealing to international authority.

Simon says that "The only people who benefit from this [copyright law change] are those who want to make use of our creative works without paying for them and large companies who will run the new private copyright registries". This is a gross exaggeration. Librarians (including the IFLA (http://www.ifla.org/index.htm), see here (http://www.ifla.org/VI/4/admin/ifla-ipaOrphanWorksJune2007.pdf)), historians, museums, preservationists, academics, and yes, even other artists, all across the country (indeed the world) have been fighting to end the legal purgatory that untold works reside in. This public interest was not invented by Peter Jaszi, but is written into the U.S. Constitution (http://en.wikipedia.org/wiki/Copyright_Clause) when it professes "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Clearly it is not simply in the interest of "thieves" that we have a healthy public domain, and I'd say we have a pretty huge authority backing up that statement.

Simon even brings up scary old Billy Gates as some kind of puppeteer, when Corbis only revenued $251 million in 2006 (http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003605513). Regardless, the fat cats that he portrays as being behind this scheme are minuscule in comparison to power players, like Disney, the RIAA, and the MPAA, that have been lobbying for copyright extension for decades. This is the real menace, and if we had reasonable copyright terms there would be no discussion of "orphaned works". In reality, plenty of others, previously mentioned, have been pushing for copyright reform for quite a while now, whose influence spurned the Copyright Office's report on Orphaned works in the first place. Publishers, like Corbis, may have allied themselves with the cause, but are by no means the sole impetus.

Speaking of the "private registries", no one has produced one scrap of concrete information on them, outside of their mention by proponents of the orphan bill. What exactly are they? Can you or I start a registry? How is it regulated? Are fees mandatory? This lack of data doesn't stop Simon from assuming that it will only be "cronies" that are allowed to run such registries, and that the pricing will be per work, etc.. He could stand to emphasize a bit more that these are predictions and not terms.

These criticisms aside, I don't disagree with the primary hypothetical conclusion, per se. I say hypothetical, because we don't have the actual bill/s to scrutinize. If it's anything like the 2006 bill, though, we are probably right to challenge it. However, the issue of orphaned works is real, and we artists must not be utterly selfish and parochial on the topic. The American Society of Media Photographers (http://www.asmp.org/news/spec2008/orphan_update.php) admit that this is something that is desired by the "general public" (obligatory reminder that the United States is a DEMOCRACY). Reforms should be made to insure that a healthy culture, necessary for our jobs, is able to thrive. Articles like Simon's (poorly researched, uncited, demagogical, etc.) do not approach the subject realistically, and help to strengthen the puerile assumption that our narrow wants should trump the public good that our founding fathers had in mind. Try taking a look at this (http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html) (scroll down for video) for a good review of the subject with Laurence Lessig's take on an alternative to the 2006 bill. Personally, I think his view is pretty much right on. A mixed mode of total protection for a time, followed by an opt-in system, would allow artists to be profitable, and ensure that nothing is wasted, culturally. Thus, we shouldn't be putting our energy into defeating any Orphanage bill that comes along, but making sure that the one that is passed is in everyone's best interest.

Jonathan Lyons
04-11-2008, 11:05 PM
I'm curious to know how many readers of this forum receive income from copyrighted material?

I don't. I can't say I even know anyone who receive's income from copyrighted material.

I've worked for a lot of people who do though.

mushroomgod
04-11-2008, 11:18 PM
I'm curious to know how many readers of this forum receive income from copyrighted material?

I don't. I can't say I even know anyone who receive's income from copyrighted material.

I've worked for a lot of people who do though.

well I do from time to time....or all the time dependong on how you look at it.


As an illustrator I own copyright on every image I produce and I license my images to clients such as the bbc/Amex/Ministry of sound etc. On a few occations I do album covers, typicaly I would license the image for Europe usage only (for example) and at a later date they may want to go global with it....in which case if they want to use my image they have to pay me more money.


But if youre talking about royaltys, then no I dont, but I know quite a few childrens authors/illustartors who do.

Edit...although, I cannot imagine anyone using any of my work without permission, simply because its already been printed/used by a much larger company then myself...Who in there right mind would rip of the Amex image I did, for all they know Amax owns the copyright?...not to mention the massive can of worms it would open

kelgy
04-11-2008, 11:36 PM
Canada, I've found, has an office....the Canadian Orphaned Works Beuro, I think that's what its called....


**Canada is a signatory to the Berne Convention.

In Canada you dont have to register your works. It helps if there is a legal dispute but is not necessary to claim copyright protection.
I havent tried the Orphaned Works Bureau, although there was an issue raised a few years ago concerning the use of copyright material (photocopying texts etc) for schools and whether that violated copyright.
I cant remember how it was resolved or it has been yet.

Rebeccak
04-12-2008, 12:12 AM
Try taking a look at this (http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html) (scroll down for video) for a good review of the subject with Laurence Lessig's take on an alternative to the 2006 bill.Thanks for the link. What a mess.

DeVangiel
04-12-2008, 02:20 AM
Technically, "Private Registries", according to Alex Saviuk, have not been created yet, and probably won't be until after (heaven forbid) the bill passes. In listening to the interview with him that Simon conducted, it seems he views the possibility of these big "Evil Corporations" taking advantage of the WAY that this bill is to be written as a reality. Think of it as paying protection to the Mob... in order to protect your business, you need to pay a fee, right....These major corporations that have the money to back this WILL get away with it, because they are smart enough to see that there is money to be made off of us by feeding off of things we NEED. And this kind of bill is what gives them the loophole in order to exploit it. Need I mention the oil industry?

While I do agree with the idea that a solution should be found for orphan works, the bill definitely needs a major overhaul. I think Lawrence Lessig is on the right track, but the idea of registering each piece of work like a domain name?....I can't fathom how this would work, especially with some studios pumping out thousands of concept sketches and IP's every year! A better solution would be a registry that would require that each studio, artist, development team, and company to submit themselves. This way, all current and future pieces of work submitted under their names would be protected from the date they were submitted for the 14 years Lessig proposes.

I see an inherent problem with the people who are writing these bills. Mr. Lessig obviously has a grasp on what it takes to actually make art, but I wonder if any one of the individuals who wrote this bill have ever sat at a computer and modeled, rigged, and animated an ogre. Have they ever drawn up designs for the concept cars of yester-year? We get paid for our artistic talents and eye for design BECAUSE we had the desire to learn and work in this field.

We are providing a SERVICE to businesses because they can't do it themselves!

Under Jaszi's ideologies of "all work done today is inspired by works of the past," ANY WORK, not just those created for entertainment, is free to the public! This means buildings, machinery, grocery store check-out counters, razors, even the keyboard I'm typing on right now...EVERYTHING is for the people. This is Marxism and indeed, Communism at heart. It is bills like these that WILL NOT protect artists and create fertile ground for creative individuals to push forward the "Progress of Sciences, Art, and the pursuit of commercialism", but rather drive the smaller companies, artists, and desingers away, while forcing the price of ALL ART to skyrocket in order to compensate for the increased cost of registering with these private companies, searching for misuse of their IP's, and paying court fees to protect work that is stolen.

As I said, there is a HUGE need for these orphan works to be resolved, but it needs to be resolved for the benefit of all parties involved. Mr. Lessig has some great ideas, as well as the ASMP, and (as always) we should look to other countries and cultures to see what they've done. As with all large scale projects I'm sure most of us have worked on, it takes one individual to create a seed of an idea. But a group of minds brainstorming together can help that seed grow and blossom into a great work of collaborative art. Just look at the most recent CGSociety challenges. I ask all of you, don't let this current incarnation of this Orphan Works Act pass. Make sure we all have a say in what is to be done with our art.;)

P_T
04-12-2008, 06:20 AM
I'm curious to know how many readers of this forum receive income from copyrighted material? Well, I think this concerns more than just those who makes a living from their intellectual property. People here post their personal work all the time. What if someone steals and make money from them?

Breinmeester
04-12-2008, 09:33 AM
There is undoubtably a money motor behind this. Why free orphan art at all? I see the occassions where the use of found art is a must for a production as very rare. Obviously the lobbying parties have a whole deal of plans for this.

I was born in Europe under the Communist regime. Seeing this bill and understanding that it is founded on Marxism and post modern nonsense helps me to remember why my parents brought our family out of that festering regime and into democracy. It's amazingly frustrating to see the same communist ideas infiltrate the heart and core of democracy, the United States. It just plain makes me sick and angry.
I understand your point of view, but this is in fact a product of capitalism. It is the American Dream: wealth on account of others.

Ivan D Young
04-12-2008, 10:19 AM
I can't believe I am going to say this, but here goes. Since this sort of Pandorian Box scenario goes more oft wrong than not. Perhaps some sort of pro active solution is in order. Anyone with more knowledge feel free to correct me where needed! Why can't the technology similar to what Adobe uses to stop counterfeiting be applied here. If there was an app, when you created art work electronically would embed a tag into the image, so that no matter how it was copied the tag could be retrieved. Then with an internet connection your image could be linked to a registry. Then when anyone who would try to copy your image they would get blocked or the image could be later found to be yours. Several problems with all this, The registry for one. Who, how and so on. Would Adobe even try to apply their technology in this way. Most people do not even know that every image they made in cs2 and cs3 are already tagged. I would like to think that Adobe would have a vested interest in thier customers success. This idea does not help those creating traditional media. They could take a digital picture, but then we are forcing every type of creative out there to have to have a computer and this app. And maybe the last problem, Adobe is already large and lethargic to a degree would we want them to have this sort of power.
This really should be something like open source, down load the app and every day that you create something electronically it is tagged and linked to one open source registry wtih enough members could guard individuals copyrights. Maybe it is pie in the sky. any thoughts?

Ivan D Young
04-12-2008, 10:23 AM
one more thought, think of the solution like mp3. Once it got made it was every where and the corps could not stop it. copyright app, same idea once it is every where it can not be stopped. Maybe wishful thinking, Damn I wish I could program right about now!

vfx
04-12-2008, 11:23 AM
Wow - dont want to start an anti-america thing here, but they really do know how to squeeze and reap from their people, not saying that doesnt happen in the uk - cos it does! Lets just hope this doesn't incourage and affect other areas of the world.

Suggestions if this becomes a reality.

1. This just means private viewings only - user and password access to people who provide you with their details and IP.

2. Watermarks etc - Actually if they remove ur name from an image - you will know because...
A. It has been cropped
B. Signs of cloning work

In either case, this is proof and evidence that can be used to sue.

3. CGtalk - if a 3rd party takes ur work and claims they couldn't find where it came from and yet a simple search on CGTalk provides full info on the artist, then again this is evidence to sue.

P_T
04-12-2008, 12:52 PM
In either case, this is proof and evidence that can be used to sue.If I understand the bill correctly, whatever you have created is automatically an orphan work unless you register it. That means it doesn't matter if you did the work in front of the Pope as the witness, if you haven't registered it, people can take it since it doesn't legally belong to anyone.

Ivan D Young
04-12-2008, 04:38 PM
here are a couple of quick links about this technology, check it out. This how the big companies will probably track their own orphans.

http://www.zdnet.com.au/news/security/soa/Adobe-others-slip-counterfeiting-code-into-apps/0,130061744,120282577,00.htm?feed=pt_adobe

This is the compnay that makes the technology, check out their monitoring page.

http://www.digimarc.com/default.asp

They are already tracking embedded images on the internet, Homeland Security, NSA, or Big Brother? just kidding.\

check out this link specifically
http://www.digimarc.com/comm/apps_pop.asp

AikoWorld
04-12-2008, 05:18 PM
this makes me want to stop publishing any personal work, that i share to or enhance my skills or to showcase my love of the creation.

I`m seeing a huge curve in today`s creations, nobody will be willing to safely publish any art.

Even if i`m reading correctly, you give somebody no permission in publishing your art, they can still say we have never received an reply, what the hell...

Anyways enough talk for me on this part, i`m not happy about it, this is for sure going to make more people start stealing others work.

inneractive
04-12-2008, 06:06 PM
Four pages of comments, only 47 Diggs? What was it that article said?

Why is this allowed to happen? APATHY and MONEY.

http://digg.com/design/You_Will_Lose_All_The_Rights_to_Your_Own_Art_Photos

prs
04-12-2008, 09:53 PM
And for an opposite viewpoint:

http://maradydd.livejournal.com/374886.html

1. "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"

Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet. That gives you, artists and authors, time to get familiar with the actual legislative landscape, research what might be proposed in a bill, and decide for yourself what position to take.

Back on March 13, Marybeth Peters, the Register of Copyrights, made a statement before the House Subcommittee on Courts, the Internet, and Intellectual Property. It discusses orphaned works in detail, and mentions previously proposed legislation that expired when the 2006 House session closed. It was never voted on.

lostpencil
04-12-2008, 10:43 PM
Hey prs, thanks for that link.

The thing that stands out in my mind when reading both of these positions is that those who are sounding the warning base it on what is believed to be coming down the pipe. Where did that information come from? Mark Simon isn't the originator (as Meredith seems to believe), but the core of the information originated from his audio interview with the Illustrator Partnership. The Illustrator Partnership are involved in the discussions and are claiming that something nasty might be coming down the pipe.

On the other hand, the people who hold the position that there is no problem are calling us to relax. Meredith, for example, simply quotes current existing copyright laws and past comments made to the sub committee. Using statements like 'It isn't likely' aren't too comforting. Also, simply quoting current existing copyright law doesn't defuse anything, since that is the point - there may be a revamping/ammending of that current law.

So we have two positions, one that claims to be in the know and has an understanding of what is coming (and warning us in advance to be ready), and another position that's based on current laws which is telling us to relax. Hmm... that's a no brainer on my part.

Anyway, something is coming down the pipe. Some say it is bad, some say they don't know, and some say it is good. I guess we just wait and see. As for me, I'll keep my eyes open and be alert (not relaxed, as per Meredith's suggestion). If it wasn't for the original article, most of us wouldn't even know that this was going on.

CKPinson
04-12-2008, 11:53 PM
Peter Jaszi- is an idiot- everything has already been invented, created, sung, danced, built or achieved by someone before us but most likely not in the same way. There is such a thing as an orignal idea- it might have been influenced or derived from a previous work but that makes it nonetheless original. Saying art is public domain is communist- all of our belongings, homes, everything might as well be owned by the government (Cuba).

RobertoOrtiz
04-13-2008, 02:41 AM
Well in the spirit of fairness, here is a counter argument...

http://maradydd.livejournal.com/374886.html

Six Misconceptions About Orphaned Works
Apr. 12th, 2008 at 9:52 AM

My friends list today has been swept by a storm of fear, uncertainty and doubt surrounding this article by Mark Simon on Animation World Network about the issue of orphaned works. "Orphaned works" are creations likely still under copyright -- photographs, illustrations, written works, music, &c. -- for which the original creator cannot be found, and thus their copyright status cannot be determined. Orphaned works present a thorny problem in today's litigious society, because when the question of "who owns X?" can't be answered, very few people are willing to do anything with X if they fear that they'll be sued for it.

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

Or what if you're cleaning out your great-aunt's attic, and you find a box full of pictures of your town as it was 100 years ago? The local history museum would love to add them to its collection -- but it can't, unless you, your great-aunt, or somebody can track down the original photographer and secure his or her permission (or the photographer's estate's permission, if the photographer's dead) to donate the photos. (Copyright in the United States lasts for life of the creator plus 75 (EDIT: 70, for works created today, older works are weird, see here for details; thanks for the correction, internets) years, so chances are, even 100-year-old photos are still under copyright. Thank Disney for that one, guys.)

But Mark Simon apparently believes that enacting legislation to handle orphaned works in a way that protects people who legitimately try to find the original copyright holder, but can't, will lead to the effective invalidation of copyright on ALL UNREGISTERED ART EVERYWHERE OMGZ CALL OUT THE CAVALRY. His article, which I linked above, is miserably poorly researched, jumps to completely illogical conclusions, and, most retardedly of all, implores artists to letterbomb Congress in protest of proposed legislation which does not actually exist. Someone please tell me where this guy is getting the crack he's smoking, because I want to avoid that streetcorner and everything in a six-block radius, kthx.

So, here are six misconceptions that are making the rounds about orphaned works, and a short explanation of why each one is a misinterpretation or just a flat-out lie. I also give links to useful supporting material, and resources you can use to keep track of this issue as it evolves.

1. "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"

Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet. That gives you, artists and authors, time to get familiar with the actual legislative landscape, research what might be proposed in a bill, and decide for yourself what position to take.

Back on March 13, Marybeth Peters, the Register of Copyrights, made a statement before the House Subcommittee on Courts, the Internet, and Intellectual Property. It discusses orphaned works in detail, and mentions previously proposed legislation that expired when the 2006 House session closed. It was never voted on.

I advise everyone to read Ms. Peters' statement. It's long, but it's in plain English. (Okay, she does like to use big words. But it's not legalese.) If you read it, you'll see that the Copyright Office is in fact concerned about how to handle orphaned works in a way that's fair to original copyright holders. I especially recommend you read the section titled "The Proposed Solution". Read it carefully. It's pretty clear that Mark Simon didn't.

If you want to keep an eye out for upcoming legislation that might affect this issue, THOMAS is a great place to start. I'm also a big fan of GovTrack, which scrapes THOMAS and sorts bills into categories based on topic -- you can even get RSS feeds of bills related to the topics of your choice.

2. "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"

That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists "from the time the work is created in fixed form" -- in other words, the instant I hit "post" on the form I'm typing this blog post in, the instant you step away from the canvas, the instant you hit "save" in Photoshop, that work is "in fixed form" and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

The Copyright Office considered the idea of a registry, but shot it down (emphasis mine):
In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work.
In the same paragraph, Ms. Peters also noted that the Copyright Office finds it important for any new legislation to cover both published and unpublished works. Existing copyright law, as we saw above, covers all works from the moment of their creation.

It is already possible to register a copyright with the US Copyright Office. It is not required, but registering a copyright gives you a few advantages in the event that someone illegally copies your work. If your copyright is not registered, you may claim "actual damages and profits" -- i.e., the value of the work. (I think this also means that you can recover whatever profits the infringer made by using your work illegally, but I'm not sure about that, and I'm not a lawyer, so don't quote me on that one.) If your copyright is registered, you may also claim statutory damages (between $750 and $30,000 per work -- up to $150,000 per work if you can demonstrate that the infringment was willful, i.e., the infringer knew the work was copyrighted but used it anyway) and attorney's fees -- in other words, if you win the case, the infringer has to pay your lawyer for you. (Whee!)

But, again, there is nothing that indicates that registration will be required. Either Mark Simon read Marybeth Peters' statement wrong, or he made it up.

3. "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"

Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it.

Now, Mark Simon seems to be flipping his shit over Ms. Peters' recommendation of
a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.
Perhaps he's envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a "good faith" search and forges ahead with an infringing use. That's not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work's original owner, the "good faith" provision doesn't apply. And even if the "good faith" provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.

It's all there in writing, folks. This isn't that hard.

Now, the Copyright Office also proposes a "safe harbor" provision for very specific cases:
a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement.
In other words, if someone infringes your work for nonprofit purposes and you pop up and say "um, no, that's mine," they must immediately take it down. Otherwise, the safe harbor provision does not apply, and they must compensate you for their use of the work. Furthermore, if they don't immediately take it down, they're also subject to the No Electronic Theft Act, which sets out the damages I described above and also establishes criminal penalties for copyright infringement, even when no money changes hands. Nobody is suggesting that the NET Act should go away either.

The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple.

4. "Someone else could register the copyright on my work, and use that against me!"

Nope. Under US copyright law, only the author of a work, a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author, the owner of exclusive rights (i.e., someone to whom you have transferred copyright under a "work for hire" agreement), or the duly authorized agent of one of the above may file for copyright registration.

Again, I'm not a lawyer, so I can't speak with any authority on what happens if somebody illegally registers a work for which they don't own the copyright. An illegally registered copyright will almost certainly have its registration revoked (freeing you up to register it yourself, if you so desire). The application form also states that "any person who knowingly makes a false representation of a material fact in the application for copyright registration .... shall be fined not more than $2500." Check out Title 17 of the United States Code, section 506(e) if you want to know more.

5. "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"

Honestly? This is the state of things already. As I pointed out to karine, the Copyright Office does not employ an elite squad of cybercops searching night and day for infringing uses of copyrighted works. They don't have that kind of money. Identifying infringing uses, sending the infringer a takedown notice, and bringing legal action if the infringer refuses to stop infringing are already your problems. They will continue to be your problems for the foreseeable future.

I've also heard some FUD claiming that if someone infringes your copyright and you don't catch them within a certain period of time, you won't have any legal recourse. I have no idea where this misconception came from, but it's also wrong. The important thing to remember here is that copyright is not trademark. Trademarks can be lost if they're not enforced, but copyright is forever (ok, life plus 70). "Well, so-and-so infringed and you didn't sue them!" is not a legitimate defense. Neither is "I've been using this for the last N years and you never said anything!" If you catch someone infringing your copyright at any point in your life, or your estate catches them at any point up to 70 years after the date of your death, you do have legal protection.

6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"

This is quite possibly the most ludicrous claim that's being bandied about. According to the Copyright Office, public display of a work does not even constitute publication -- you have to sell copies, or tell other people they can distribute copies, in order for the work to be considered "published". (EDIT: what I tell you three times is true, I am not a lawyer. The Copyright Office's FAQ does not opine about content displayed on the Internet, but you're probably better off disallowing redistribution anyway if this is something you're concerned about.)

Furthermore, as we've discussed above, a work need not be registered with the Copyright Office, or with a private registrar, to be covered by copyright, so if someone infringes on your work and you send them a takedown notice, the work is not orphaned. Full stop. I cannot repeat this enough times.

Copyright is automatic and does not change unless you transfer your copyright to someone else, die (in which case it's automatically transferred to your estate), or commit the work to the public domain. "Orphanedness" is a state which gets removed when the copyright holder speaks up. Even placing a work under a distribution license, such as a Creative Commons license, doesn't change the fact that you own the copyright.

Also, for those of you considering formal registration with the Copyright Office to have the option of statutory damages, here's a neat loophole you can use. Unpublished works can be registered as a collection, as many works in the collection as you want, in a single filing, for one filing fee of $35. Since merely putting your artwork up for display on the Interwebs doesn't constitute "publication", you could register "All My Artwork From The Last Ten Years" as an unpublished collection for a whole $35, and sue the pants off anyone who infringes anything in that collection. (This would also be a fun way to test whether the Copyright Office considers works displayed on the net to be unpublished. If you try this out, do let me know!)

---

I hope this addresses any fears you might have about orphaned works and the sort of legislation that might come up regarding them. If you have any questions, please feel free to comment and I'll do my best to answer them. Likewise, please feel free to link this article or reproduce it in full or in part; I am placing it under the Creative Commons Attribution-Noncommercial-ShareAlike 3.0 United States license.

kynn also has some cogent observations about orphaned works, Mark Simon, his sources, and some follow-the-money fun here.

Buexe
04-13-2008, 10:04 AM
Peter Jaszi- is an idiot- everything has already been invented, created, sung, danced, built or achieved by someone before us but most likely not in the same way. There is such a thing as an orignal idea- it might have been influenced or derived from a previous work but that makes it nonetheless original. Saying art is public domain is communist- all of our belongings, homes, everything might as well be owned by the government (Cuba).

I agree, I wonder on whose payroll this guy is. Copyright is also a mean to protect investments. I mean film companies invest into an intellectual property and guess what, some do it to earn money! What if there is no protection? there will be no further invesstment. And the technological twin of a copyright is a patent. Why should they deserve a protection? Following the logic of this Jaszi, they should neither deserve protection. So why should people invest into new technologies and compete to make their new tech better, if they can not hope on protection of their investment? The guy has a nice rhetorical way to make sound stuff reasonable, but everybody with a higher IQ than 30 should see that he is all BS.

millycattus
04-13-2008, 04:27 PM
'Six Misconceptions About Orphaned Works' - obviously the person who wrote this isn't a dedicated, nor a professional illustrator, who's work has been stolen in the past.


in the spirit of fairness

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00263

Ivan D Young
04-13-2008, 05:04 PM
WOW! no thoughts on the links about the technoloy to embed digial tags that can't be removed?



I guess no one either made the mental leap, That Adobe and Digimarc already have your imgaes from the last two years tagged, If this legislation is true Adobe and Digimarc could steal millions of images over night. After all they are already tracking them and you have already helped them to do it, by posting.

Of course, they could not really steal your stuff, their embedded tags them what OS you have, what type of processor, and probably some more info we don't know about.

eirenicon
04-13-2008, 05:52 PM
If I understand the bill correctly, whatever you have created is automatically an orphan work unless you register it. That means it doesn't matter if you did the work in front of the Pope as the witness, if you haven't registered it, people can take it since it doesn't legally belong to anyone.
:eek:

That would be amazing, if it was true.

First of all, can you give me a link to the bill? I mean, it sounds like you've read it, and I can't find it anywhere. Even the Library of Congress doesn't have anything related to Orphan Works in current legislation. It's as if there is no such bill, just discussion about it between various lawmakers and/or officials in committee.

Second, a bill that did what you describe would be impossibly radical. It would violate international and American law and be struck down without deliberation by any court it was challenged in front of. And it would have nothing to do with orphan works.

When you create something, who owns the copyright? You do, or your employer if you are under 'work for hire'. That won't change, no matter what any bill says. It is protected by international treaties the US has legally adopted. These treaties, by the way, protect the ability of organizations like the RIAA to go after copyright infringement in other countries, so they aren't exactly interested in breaking them.

What is an orphan work? It's a copyright work whose owner cannot be found. What the proposed legislation suggests is to allow the use of orphan works after a diligent search for the owner has yielded no result. There is no current definition of a 'diligent search' but I am guessing 'five minutes on Google' will probably not suffice. Nothing says that you have to pay to register your work to be protected. Nothing says that simply having it possible to find on Flickr or on CGSociety or on your own website isn't sufficient to prevent people from stealing it.

I just don't see how this changes the landscape. People already infringe on copyright. That's why you see so many images with watermarks on them. That's why you should already use watermarks. A watermark is a fool-proof way to prevent infringement. Even if someone finds a copy of your image where someone has already removed the watermark, it's their responsibility to prove that they didn't remove it themselves.

Besides, you're all missing the bottom line here. Even if an orphan works bill exists, it won't pass. It's an election year. The Democrats control Congress by a hair. Such a bill probably won't even make it out of committee, like it didn't in 2006.

tatiana
04-13-2008, 06:04 PM
:eek:...First of all, can you give me a link to the bill? I mean, it sounds like you've read it, and I can't find it anywhere. Even the Library of Congress doesn't have anything related to Orphan Works in current legislation. It's as if there is no such bill, just discussion about it between various lawmakers and/or officials in committee....

Here ya go:

http://www.publicknowledge.org/bill/110-hr4279

Introduced

December 5, 2007

Sponsors

Rep John Conyers, Jr. [MI-14] with:



Rep Howard L. Berman [CA-28]
Rep Mary Bono Mack [CA-45]
Rep Steve Chabot [OH-1]
Rep Howard Coble [NC-6]
Rep Steve Cohen [TN-9]
Rep Tom Feeney [FL-24]
Rep Bob Goodlatte [VA-6]
Rep Darrell E. Issa [CA-49]
Rep Sheila Jackson-Lee [TX-18]
Rep Ric Keller [FL-8]
Rep Mike Pence [IN-6]
Rep Adam B. Schiff [CA-29]
Rep Lamar Smith [TX-21]
Rep Melvin L. Watt [NC-12]
Rep Robert Wexler [FL-19]
Status

3/6/2008 House committee/subcommittee actions. Status: Forwarded by Subcommittee to Full Committee (Amended) by Voice Vote.

CRS Summary (as Introduced)

Prioritizing Resources and Organization for Intellectual Property Act of 2007 - Amends federal copyright law to: (1) provide a safe harbor for copyright registrations that contain inaccurate information; (2) provide that copyright registration requirements apply to civil (not criminal) infringement actions; (3) require courts to issue protective orders to prevent disclosure of seized records relating to copyright infringement; (4) revise standards for civil damages in copyright infringement and counterfeiting cases; and (5) prohibit importing and exporting of infringing copies of copyrighted works.

Amends the federal criminal code with respect to intellectual property to: (1) enhance criminal penalties for infringement of a copyright, for trafficking in counterfeit labels or packaging, and for causing serious bodily harm or death while trafficking in counterfeit goods or services; and (2) enhance civil and criminal forfeiture provisions for copyright infringement and provide for restitution to victims of such infringement.

Establishes within the Executive Office of the President the Office of the United States Intellectual Property Enforcement Representative to formulate a Joint Strategic Plan for combating counterfeiting and piracy of intellectual property and for coordinating national and international enforcement efforts to protect intellectual property rights.

Directs the Under Secretary of Commerce for Intellectual Property and the Director of the U.S. Patent and Trademark Office (USPTO) to appoint 10 additional intellectual property attaches to work with foreign countries to combat counterfeiting and piracy of intellectual property.

Establishes within the Department of Justice (DOJ) the Intellectual Property Enforcement Division to be headed by an Intellectual Property Enforcement Officer (IP Officer).

Amends the Computer Crime Enforcement Act to modify grant programs for combating computer crime to include infringement of copyrighted works over the Internet. Directs the Office of Justice Programs of DOJ to make grants to state and local law enforcement agencies to combat intellectual property theft and infringement crimes.

Directs the Attorney General to: (1) review Computer Hacking and Intellectual Property (CHIP) units and provide such units with additional support and resources; (2) direct each U.S. attorney to review policies for accepting or declining prosecutions of criminal cases involving intellectual property theft; (3) deploy five additional Intellectual Property Law Enforcement Coordinators in foreign countries to protect the intellectual property rights of U.S. citizens; and (4) increase DOJ training and assistance to foreign governments to combat counterfeiting and piracy of intellectual property.

tatiana
04-13-2008, 06:07 PM
There's actually quite a bit of copyright amendments and Orphan Works info here (which was where I found the above latest info on proposed legislation). I believe the original bill was from 2005 if I recall the timeline correctly.

http://www.publicknowledge.org/taxonomy/term/55

eirenicon
04-13-2008, 06:26 PM
http://www.publicknowledge.org/bill/110-hr4279
Maybe I'm dense, but... could you point out which section deals with this issue? I mean, the last bill, H.R.5439 (http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5439:), was called the "Orphan Works Act of 2006". This bill doesn't even mention the word "orphan" anywhere in the text and I don't see anything that deals with all of the stuff we're talking about.

millycattus
04-13-2008, 10:01 PM
I think this will violate illustrators copyrights. It opens a loophole in the legal system for someone to use your work. Let say if I created an illustration of some 'chick' and named it 'The Intervened Beauty', an illustration which is copyrighted upon creation and place it on the internet in some gallery with a proper (C) notice, someone might take that image, repost it with the cut out (C) notice for his 'personal use in mind', yet someone else might find this illustration, make a 'diligent search' for the copyright holder by typing 'pretty princess' in the search engines and perhaps browsing picscout to see if the image is copyrighted. With results coming in empty, unable to find the copyright owner, this will make the illustration an orphan to be used freely for commercial purposes.

Picscout has a 99% accuracy of finding match of the image, in it's registry database. What happens if you are the 1% (that's 10000 of a million)? Or if you don't have the cash to register every single photo, illustration, you ever created?

Currently there a millions of images on the net without a (C) notice attached to them.. Images that we don't use for commercial purposes because we presume they belong to someone with proper copyright. This 'Orphan Bill' will make all of these illustrations, photos, orphans to be used as pleased. Nonsense!!

Registries stand to make a killing on this.. I can just picture Getty Images and Corbis (Bill Gates) being involved in this.. Large corporations in the US seem to purchase laws to their liking..



I also think this is somewhat important.. I can't picture anyone dragging someone to court just to receive $200 in damages over “innocent infringement”, and there will be a lot of “innocent infringements” after a "diligent, good faith search"!

"Some who oppose orphan works legislation have also objected to the removal of statutory damages, which are available under Title 17 in certain instances. A few have even asserted that statutory damages are an entitlement under the law that cannot be rescinded. We disagree. Statutory damages are an alternative means by which a copyright owner may recover against an infringer in lieu of proving actual damages and lost profits. However, they are only available if the owner has registered the work prior to the infringement or within three months of publication. (While it is possible that a registered work could be an orphan work within the proposed legislative framework, we think this is unlikely to be a common situation, not because the registration is guaranteed to be found, but because an owner who has taken steps to register his work has likely taken other steps to make himself available outside the registration system.) Statutory damages are not an absolute entitlement any more than copyright ownership itself is an absolute right. Just as there are exceptions to, and limitations on, the exclusive rights of copyright owners (for example, fair use), there are exceptions to statutory damage awards. In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements by nonprofit educational institutions, libraries, archives and public broadcasters, the court may reduce the award to zero.3 The fact remains that the possibility of statutory damages, however remote, is the single biggest obstacle preventing use in orphan works situations. In cases of non-willful infringement, statutory damages may be as high as $30,000 for each infringed work. In cases of willful infringement, they may be as high as $150,000 per infringed work.

We are not suggesting, in general, that the scheme of statutory damages is unjust. On the contrary, statutory damages fulfill legitimate and necessary purposes. That said, we do believe that in the case of orphan works, the rationale for statutory damages is weak. By definition, in the orphan work situation, the user is acting in good faith and diligently searching for the owner, and the owner is absent. The purposes of statutory damages, i.e. making the owner's evidentiary burden lighter and deterring infringement, weigh less heavily here. If the copyright owner is not identifiable and cannot be located through a diligent, good faith search, we believe the appropriate recovery is reasonable compensation. If orphan works legislation does not remove statutory damages from the equation, it will not motivate users to go forward with important, productive uses. On the other hand, the prospect of orphan works legislation may motivate some owners to participate more actively in the copyright system by making themselves available."

Source - http://www.copyright.gov/docs/regstat031308.html

BS!

RobertoOrtiz
04-13-2008, 11:06 PM
If this law is still starting out, we need to have our say so before it is too late.

It is VERY HARD to get rights back after you have lost them.

Ok so guys help me out,

Here are some links from different boards
Comment on them to spread the word:

For starters post on DIGG to get more people on board
http://digg.com/design/You_Will_Lose_All_The_Rights_to_Your_Own_Art_Photos (http://digg.com/design/You_Will_Lose_All_The_Rights_to_Your_Own_Art_Photos)

Email others about his issue,
Send the DIGG ink as part of your email

Debate it here:
FlickrCentral thread :(http://www.flickr.com/groups/central/discuss/72157604500676263/ (http://www.flickr.com/groups/central/discuss/72157604500676263/))
PHPBB thread:
(http://www.mu80.com.cn/viewtopic.php?f=10&t=98685 (http://www.mu80.com.cn/viewtopic.php?f=10&t=98685))
Comic Book Resources Thread:
(http://forums.comicbookresources.com/showthread.php?p=6686208&posted=1#post6686208 (http://forums.comicbookresources.com/showthread.php?p=6686208&posted=1#post6686208))

Contact news organizations:
http://www.cnn.com/feedback/forms/form5.html?9 (http://www.cnn.com/feedback/forms/form5.html?9) (the guy is a blowhard, but this is right up his alley)


and PLEASE
do comment on the counter argument Blog.
Her points HAVE to be adressed
http://maradydd.livejournal.com/374886.html (http://maradydd.livejournal.com/374886.html)

RobertoOrtiz
04-13-2008, 11:15 PM
duplicate post (http://maradydd.livejournal.com/374886.html)

El-d
04-14-2008, 10:58 AM
Obviously there are alot of members of CGtalk who are not american citizens and can but hope that this bill doesn't go through only to be followed by european law etc.

Is it possible to setup an online petition that can be used so that non-americans can also voice there concern in a unified list? This petition could then be used for any country proposing these laws. The global art community protesting.

El-d

neablo
04-14-2008, 11:12 AM
I think once such a law exists in the United States then there's no reason for the dumb European Union not to do the same with copyrights.

As I'm living in the EU I can't do something against the development in the US apart from spreading the bad message and telling artists to wake and stand up.

This should be frontpage by the way!! Maybe with a combination of a Dollar and a copyright 'C'
;)

yenvalmar
04-16-2008, 01:34 AM
right after i paid my taxes too. oy.

its hard to see how anyone will really benefit from this. do big companies expect to make a lot of money from ripping off random peoples art? if they are that desparate they are about to die anyways. seems to me like another hostile retaliation to file sharing.

if these guys keep doing this they are digging their own graves, they already lost my business, and i dont listen to their dumb music or watch their bad music even illegally and imo am better off- plenty of good stuff is made by peoople who really care about it, because they want to.

there isnt even a commercial VENUE for most art posted online. whole thing seems weird. usually when one group of people screws over another they at least BENEFIT from it.

Rebeccak
04-16-2008, 03:17 AM
I subscribed previously to the Illustrator's Partnership:

Illustrators Partnership <illustratorspartnership@cnymail.com>

and just got this email:
FROM THE ILLUSTRATORS’ PARTNERSHIP


In the last few days, over one thousand people have asked to be added to the Illustrators’ Partnership e-mail list. New names keep coming in by the hour. Since you’re new to these postings, let’s tell you who we are.


The Illustrators’ Partnership of America (IPA) is a group of working artists who have banded together as a sort of neighborhood watch group. We’ve united other groups representing medical illustrators, architectural illustrators, general science illustrators and cartoonists. To oppose the Orphan Works bill, we’ve teamed up with fine artists, photographers, graphic designers and textile designers.


We first warned about this legislation in March 2002 when it was just a gleam in the eyes of some activist legal scholars. In 2004 we published The Copy Left Is Not Right and set up a mass e-mail list to start alerting our colleagues to coming developments. These articles are now archived on the IPA Orphan Works Resource page: http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185 (http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185)


Over the coming days, we’ll tell you what we’re doing to oppose this bill and what you can do to work with us.


For the moment, we’re not advising you to write Congress. You can – and it may do some good – but it’s best to wait until the new bill has been introduced and given a number. Then we’ll have to act fast. Its advocates will try to pass it quickly.


So what can you do now? Help us spread the word. In doing so, please don’t overstate the danger; this bill is bad enough. Wherever possible, back up assertions with facts – quotes from sources, citations, links. Our arguments have to be clear, accurate and respectful of the opinions of those on the other side.


We have a modest war chest, but great legal representation. We’re meeting now with members of Congress and we’ll work hard to make them see how this wrong-headed and poorly thought-out bill will harm the cause of creativity. We’ll follow this e-mail with another one shortly - addressing the issues others have raised about our recent interview.


Welcome to our e-mail group.


— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership


Cynthia Turner is a certified medical illustrator and a Fellow of the Association of Medical Illustrators (AMI). She is a founding member and Board member of the Illustrators’ Partnership of America, and a member of the Society of Illustrators. She creates original illustrations describing pathophysiological cascades, drug actions, and medical devices for medical publishers, pharmaceutical companies, biotechnology firms and their agencies.


Brad Holland is a self taught artist and writer. His work has appeared in Time, Vanity Fair, The New Yorker, Rolling Stone and other publications. He has painted CD covers for Ray Charles, Stevie Ray Vaughn and Billy Joel. The Washington Post has called him “an undisputed star of American Illustration," and the editors of RSVP, the artists' directory, voted him “the one artist, who in our opinion, has had the single greatest impact on the illustration field during the last twenty five years.” Brad Holland is a member of the Alliance Graphique Internationale, a co-founder of the Illustrators’ Partnership and a member of the Society of Illustrators Hall of Fame.


Please post or forward this email in its entirety to any interested party


If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com
Place "Add Name" in the subject line. If you wish our mail sent to an address other than the one you mailed us from, provide the name and the email address you want used in the message area.

Intars5d
04-16-2008, 11:04 AM
I read many posts and first want to thanks author for this thread
Not until this day I was interested in all copyright stuff, thought that it's not for me yet.
But I with two friends of mine started one small animation project and in one meeting question about copyright was rised. All this copyright stuff, it seems such a mess
Is there any link of info about all this, where all this copyright thing is explained to beginners like including tips and so on. Some site where time after time I could check in when needed

TonyMullen
04-17-2008, 11:07 AM
This is a really good video to watch to get a sense of why something should be done about orphan works and why the current bill is not really the right thing to do. Anybody who's interested in this issue should take a look at it.

http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html

In any case, none of the proposals on the table eliminate copyrights, even the more ham-fisted of them. And the intentions of the bills are good. Nobody's planning on getting rich by screenscraping your artwork, and if they do you will still have the copyright on anything that you create (provided it's demonstrable that it's yours, of course, which is as it's always been).

Orphan works are important to protect for cultural and artistic reasons. If a worthwhile piece of artwork is orphaned, nobody can touch it. It can't be preserved until its copyright runs out, and in many cases the physical medium it's on won't survive its copyright term.

madriver
04-17-2008, 03:17 PM
Uhm, correct me if I'm wrong or maybe someone has already posted this (no time to read all the replies in this thread) but writers in the US already have a similar thing in place. It's called Registration and is managed by the Writer's Guild of America West. After finishing a screenplay, novel, or any other type of written manuscript, you pay the WGA-W $25 to register your work. This places a time/date stamp on the work as soon as it arrives in their office and has been used numerous times in court to verify who created what first.

The orphan law sounds very similar. If it is, I think the alarm bells by the art community are unfounded. WGA registration is highly effective and I've never once heard of the WGA stealing writer's works. Sure, they make a lot of money but so does the copyright office of the Library of Congress.

To me, if you post something that is outstanding, watermark it or it will likely get stolen. That's just they way things are in the Internet Age, unfortunately.

tatiana
04-17-2008, 05:05 PM
Uhm, correct me if I'm wrong or maybe someone has already posted this (no time to read all the replies in this thread) but writers in the US already have a similar thing in place. It's called Registration and is managed by the Writer's Guild of America West. After finishing a screenplay, novel, or any other type of written manuscript, you pay the WGA-W $25 to register your work. This places a time/date stamp on the work as soon as it arrives in their office and has been used numerous times in court to verify who created what first.

The orphan law sounds very similar. If it is, I think the alarm bells by the art community are unfounded. WGA registration is highly effective and I've never once heard of the WGA stealing writer's works. Sure, they make a lot of money but so does the copyright office of the Library of Congress.

To me, if you post something that is outstanding, watermark it or it will likely get stolen. That's just they way things are in the Internet Age, unfortunately.

I'm just pulling a couple of snippets from the article to highlight why registering images may not be quite as simple (although some companies may be able to register artwork or photography as a collection of images as was mentioned in a previous post) as registering a written manuscript:

1. "...You could see photos you take of your family and kids, or of a family vacation, used in a magazine or newspaper without your permission or payment to you. You would have to pay to register your photos, all of them, in every new registry in order to protect them. Say the average person takes 300 photos per year... If a registry only charges $5 per image, that is a whopping $1,500 to protect your photos that are protected automatically under the current laws. If there are three registries, protecting your images could cost an amazing $4,500. Not to mention the time it would take to register every photo you take. Plus, you will also have to place your copyright sign on every photo.

That's not including all your art, sketches, paintings, 3D models, animations, etc. Do you really have all that extra time and money? Plus, even if you do register, the people stealing your work can still claim it was orphaned and, unless you fight them, they win. Even if you win, you may not make back your legal fees...."

2. "...It gets even better. Anyone can submit images, including your images. They would then be excused from any liability for infringement (also known as THEFT) unless the legitimate rights owner (you) responds within a certain period of time to grant or deny permission to use your work.

That means you will also have to look through every image in every registry all the time to make sure someone is not stealing and registering your art. You could actually end up illegally using your own artwork if someone else registers it..."

-------------
Watermarking is a fine idea...but what online newspaper, magazine, etc. will permit that when you sell your work to them? Generally, the copyright info is posted below the image if that's in your contract, not on it. And that is a strong concern from what I've read by photographers who sell their work as stock photography. So, if someone grabs the image, there's not necessarily associated copyright info with it.

Also, I read that some image hosters (Flickr was one example I found, link to article here (http://duncandavidson.com/2008/04/flickr-strips-copyright-metada.html)), where metadata (like ownership for example) is stripped when the image is posted. So, things aren't quite perfect yet...

So...I'm still not entirely sure what all is going on with the Orphan Works hearings/bill/law and what it could mean as regards to how my work is used for commercial and/or private with copyrights or no...or even how it could affect the way that I post my artwork (and other images) on the internet; most of the legal documentation is not something that I read and study on a daily basis (ha -- hardly). Whatever the case, I'm glad that it's finally on my radar, considering that the initial bill hearing (proposal) looks like it was in 2002 and I'd never heard a peep till March 2008.

nemirc
04-17-2008, 06:56 PM
Registries stand to make a killing on this.. I can just picture Getty Images and Corbis (Bill Gates) being involved in this.. Large corporations in the US seem to purchase laws to their liking..

somewhat offtopic: I just love how people get bill gates involved in every little thing
gotta love this anti bill gates propaganda

geez, the man has time to run microsoft, make that surface table, watch over the sea dragon thing, the virtual earth, the rear multitouch thing, winmin, pretty much all microsoft software, do the xbox thing, play guitar hero 3... and on top of that steal people's works through the corbis company

all of that before lunch :)

speaking of real-life windows experience... damn, I'd love to be able to multitask like him :bowdown:


as for the thread itself...
the stupid question of the day (courtesy of me) would be
say there's an artist living somewhere in the middle east, far far away from the US
since the internet is pretty much "no man's land" anybody could claim his work as "orphaned" and just take it and the profit from it and whatever
I can very easily copyright my works in my country since there's a place to do so
but how does that prevent my work from being stolen in no man's land?
on top of that, why should I pay some US company to get my "copyrights" when I am not even an US citizen? mind me, but if I lived somewhere in middle easth, I have to obey the laws in my country, not the laws in some country far far away.

and the last question...
who sets the rules and laws in no man's land anyway. last time I saw we didn't have any kind of "internet goverment" or whatever

alredha
04-17-2008, 11:38 PM
Six Misconceptions About Orphaned Works (http://maradydd.livejournal.com/374886.html?mode=reply)

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

does it means that anybody could take my album photos by force because it's not mine as a pretext even though it's me who is in the photos? (some of them i'm nude :argh: )....

xeNusion
04-18-2008, 10:27 AM
yes. thats exactly what will happen

~digitaldemigod~
04-18-2008, 04:34 PM
I can't believe I am going to say this, but here goes. Since this sort of Pandorian Box scenario goes more oft wrong than not. Perhaps some sort of pro active solution is in order. Anyone with more knowledge feel free to correct me where needed! Why can't the technology similar to what Adobe uses to stop counterfeiting be applied here. If there was an app, when you created art work electronically would embed a tag into the image, so that no matter how it was copied the tag could be retrieved. Then with an internet connection your image could be linked to a registry. Then when anyone who would try to copy your image they would get blocked or the image could be later found to be yours. Several problems with all this, The registry for one. Who, how and so on. Would Adobe even try to apply their technology in this way. Most people do not even know that every image they made in cs2 and cs3 are already tagged. I would like to think that Adobe would have a vested interest in thier customers success. This idea does not help those creating traditional media. They could take a digital picture, but then we are forcing every type of creative out there to have to have a computer and this app. And maybe the last problem, Adobe is already large and lethargic to a degree would we want them to have this sort of power.
This really should be something like open source, down load the app and every day that you create something electronically it is tagged and linked to one open source registry wtih enough members could guard individuals copyrights. Maybe it is pie in the sky. any thoughts?

Well for one thing, it's easy to avoid embedded watermarks in an image like that. Say that you're wanting to claim someone's image is an orphaned work, even though you've found it on their website. Assuming the image you want to steal fits in the screen, and even if the JPG has this tag embedded in it's file data, all you have to do is use your trusty print screen button and you've just bypassed it all. When you paste your clipboard data into YOUR photoshop and crop down to the image you stole, you don't have any of the data of that original file. Now you can save the image out of your photoshop and claim it was yours all along, especially now that you've got some embedded tag that proves it now.

Intars5d
04-19-2008, 10:31 AM
I have read somewhere once that Adobe announced(just maybe, rumors) they will develop software which will be capable to detect and show whether any digital manipulations with image has or hasn't been done. It could be powerful tool in solving many copyright problems, especially those which comes with JPEG cropping, cutting original watermark of original author and so on
Anyone has any more info of that?

RobertoOrtiz
04-19-2008, 06:37 PM
Here's an update from Marc Simmions at AWN (http://mag.awn.com/index.php?ltype=pageone&article_no=3615&page=1).

Most of what he has stated has been said here or at least linked to the resource.

wilgory
04-19-2008, 08:17 PM
I always find copyright laws interesting and this thread/article have had a variety of valid points and positions. I was advised recently to always put a watermark or logo, etc on the bottom corner of a finished piece of work on flickr or online, etc. But I personally wouldn't worry about losing a copyright on CGsociety because they add the cgsociety logo and publish date on each high res image.

Another method that maybe more transparent, would be to ensure all images have proper meta data including copyright info, website, etc. It is easy to add meta information to all images in photoshop. Regarding photography, I have lightroom apply a standard set of copyright information to all of the images upon import. Theoretically this information will stay intact if I save the image for the web.

Then it should be the responsibility of the people trying to utilize 'orphaned work' to check for proper copyright info anyway that is possible.

Ivan D Young
04-19-2008, 08:36 PM
I believe that watermarks probably can be removed and likewise metadata. But what I am refering to is the security technology that is a step above the watermark technology. The security technology is currently used to safe guard our money from counterfeiting. Try to scan money and see what happens. IT is that technology that I am forwarding that should be used to safeguard our works. The casual image lifting would be all but squashed. Certainly there is nothing 100% uncrackable and hackable. But it would be nice to at least have some assurance that casual image grabbing and misuse could be tracked.
Go back and check those links to Digimarc their technology is lot more than just watermarks and metadata. The question though do these companies want to bring this a little more to the forefront, after all I would not be surprised if tracking, data mining, and marketing info was being collected on us, the users by what we post on the internet in public forums.

supremepizza
04-22-2008, 06:17 AM
I've passed on companies that require (IMHO) over cautious pre-employment creative idea ownership (Inetllectual Property).

Is this a mistake?

I'm scared to send out portfolio footage becasuse someone may take ownership of it if I sign the papers.

lostpencil
04-23-2008, 04:35 AM
FROM THE ILLUSTRATORS’ PARTNERSHIP


Today the House and Senate sent us draft copies of the new Orphan Works Act of 2008. They haven’t officially released it yet, but we’ve been told the Senate will do so this week. A quick analysis confirms our worst fears and our early warnings. If these proposals are enacted into law, all the work you have ever done or will do could be orphaned and exposed to commercial infringement from the moment you create it.


You’ve probably already heard Mark Simon’s webcast interview with Brad Holland. If not, please listen to it at:
http://www.sellyourtvconceptnow.com/orphan.html (http://mhtml:{E78B3C7B-7B29-4A9B-BCF8-3C4C5FFB1FD6}mid://00000928/!x-usc:http://www.sellyourtvconceptnow.com/orphan.html). <http://www.sellyourtvconceptnow.com/orphan.html (http://mhtml:{E78B3C7B-7B29-4A9B-BCF8-3C4C5FFB1FD6}mid://00000928/!x-usc:http://www.sellyourtvconceptnow.com/orphan.html)>


Then forget the spin you’ve heard from backers of this bill. This radical proposal, now pending before Congress, could cost you your past and future copyrights.


The Illustrators’ Partnership is currently working with our attorney - in concert with the other 12 groups in the American Society of Illustrators Partnership to have our voices – and yours - heard in Congress. We’ll keep you posted regarding how you can do your part.


Please forward this information to every creative person and group you know. Mr. Holland and Mr. Simon have given their permission for this audio file to be copied and transferred and replayed.


For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185 (http://mhtml:{E78B3C7B-7B29-4A9B-BCF8-3C4C5FFB1FD6}mid://00000928/!x-usc:http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185)


If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com (http://mhtml:{E78B3C7B-7B29-4A9B-BCF8-3C4C5FFB1FD6}mid://00000928/!x-usc:mailto:illustratorspartnership@cnymail.com)
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.

DeVangiel
04-23-2008, 03:19 PM
For those of us who are students, be sure to let your fellow classmates and instructors know of this proposal if you haven't already. It will take every one of us to fight this.

RobertoOrtiz
04-23-2008, 03:23 PM
Agreed!
May I suggest posting copies of this article on bulleting boards at your schools.

Orphan Works – No Myth (http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00264)


It is a great primer on the issue and at the same time shoots holes on
Six Misconceptions About Orphaned Works 2008 blog entry that keeps popping up.
-R

ChimaeraAbaddon
04-24-2008, 07:10 PM
As someone who is just starting up... this is the equivalent of a sledgehammer to my morale. I've been carefully reading up about copyright, common practices and all the laws required for new creations and new business, because I'm in a financial situation that if I screw this up I might end up on the street... and it's taken me 4 years to convince myself to try. I'm in Canada so the affect would at least be limited against me... but the thought that someone across the border could take anything I make and be laughing all the way makes my head hurt. And it makes me worry "what if our legislators follow suit?"

I just can't see how this law makes sense. I agree with the thought that a solution needs to be found to allow public need, but is it not considered that artists are part of the citizenry and deserve their needs as well? I know I'm not exactly contributing to the thread, but my mind can't seem to get past the thought of "what the hell?!"

DeVangiel
04-24-2008, 07:27 PM
Thanks for the link Roberto!

Priorly I had posted Mr. Simon's interview and had already informed my instructors, I'll be sure to post these up as well.

And Chimera... don't let this discourage you.... many nations and people have been oppressed before, and the one's who changed things for the better are the one's that kept hope through troubled times. Now that we are the people who are being targeted, we must do the same.
:beer:

Rebeccak
04-24-2008, 07:30 PM
I just received this:
FROM THE ILLUSTRATORS’ PARTNERSHIP

The Orphan Works Act of 2008 will be officially released momentarily.

The language in the draft confirms our warnings. If this bill passes, you’ll be forced to clear all your secondary licensing rights through at least two government certified databases – or risk orphaning your art.

Despite its masquerade as the "last resort" to search for a rights owner, these databases will likely become the only source many users will rely on for finding a rights owner. Reason: it will give users the legal right to infringe any copyright not in the databases.

We’re working with our attorney now to prepare opposition letters.

We have contracted CapWiz, a service that will allow you to send these letters to Congress with a push of the button.

CapWiz will also provide us with "digital stickers" that anyone else - organizations, individual artists, blogs, etc. - can put on their sites that create a direct link to the command center to write their Congressman and Senators to defeat this radical change to U.S. Copyright law

Please stay tuned and we’ll tell you in a day or so what you can do to register your opposition.

For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership....earchterm=00185 (http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185)

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com (http://forums.cgsociety.org/illustratorspartnership@cnymail.com)

Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.

Zarathustra
04-24-2008, 07:33 PM
I find the proposed idea similar to trademark law in that each work would have to be registered, you'd have to pay to register, and then it would be up to you to monitor infringements or, also like trademarks, hire some agency to police what you register. Of course, unlike a trademark, having to repeat this process perhaps daily would exhaust both by my time and my money in VERY short time.

It also turns my stomach how an obvious bill to exploit artists by large corporations is cloaked in a need to help you save your granny's precious photo album or to better serve the public by allowing material to be used for documentaries and similar educational productions. That last bit is especially insulting in light of how little the government really cares about education (funding for RIF is going to be cut for 2009).

KayosIII
04-24-2008, 11:25 PM
Agreed!
May I suggest posting copies of this article on bulleting boards at your schools.

Orphan Works – No Myth (http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00264)


It is a great primer on the issue and at the same time shoots holes on
Six Misconceptions About Orphaned Works 2008 blog entry that keeps popping up.
-R

Best solution I can think of would be to make the person who intends to use the work as an auphaned work register it and be allowed to use it if the work goes unclaimed for a period of time (years) be allowed to use it as such...

switchblade327
04-25-2008, 12:00 AM
I have read somewhere once that Adobe announced(just maybe, rumors) they will develop software which will be capable to detect and show whether any digital manipulations with image has or hasn't been done. It could be powerful tool in solving many copyright problems, especially those which comes with JPEG cropping, cutting original watermark of original author and so on
Anyone has any more info of that?

Is it going to prevent the ability to print screen? If not, it's useless. I wouldn't trust my legal rights to anything that can be easily hacked or worked around and all software security is eventually bypassed by someone determined enough.



It is a great primer on the issue and at the same time shoots holes on
Six Misconceptions About Orphaned Works 2008 blog entry that keeps popping up.
-R

It's funny (in a sad-statement-about-human-psychology-kind-of-way) how this blog is getting tossed around so much as the supreme, divine counter-argument to some artist organizations' conspiracy theory. it's a freakin' LIVE JOURNAL ENTRY. Citing wikipedia is bad enough but using one person's word on the internet as grounds for dismissing the whole thing is ridiculous.

Rebeccak
04-25-2008, 01:43 AM
It's funny (in a sad-statement-about-human-psychology-kind-of-way) how this blog is getting tossed around so much as the supreme, divine counter-argument to some artist organizations' conspiracy theory. it's a freakin' LIVE JOURNAL ENTRY. Citing wikipedia is bad enough but using one person's word on the internet as grounds for dismissing the whole thing is ridiculous.QFA. This issue is far too complex to be dismissed on the basis of one person's opinion.

ChimaeraAbaddon
04-25-2008, 02:52 AM
Thanks DeVangiel, oddly enough that was about the most perfect thing that could have been said for me... since I grew up in South Africa under urm... interesting circumstances. Guess I just feel tired of fighting at points.

But I've given the information to everyone I know and every community I know up here. It's outside the direct arena, but hopefully it'll give some support of things.

I'm kind of surprised at the backlash on the issue though... how people are dismissing those concerned about the issue. The career I was pursuing before this was law, actually... and this legislation seems idiotic. It seems to approach the issue in reverse, is so broad and contrary to common practice, and violates the spirit of current laws.

And to those comparing it to other things, such as trademark law, positively or negatively, I might just suggest avoiding that. It's often a very bad idea to compare different laws and even things that seem similar, really aren't. Trademarks being one such, since the registry exists because of the singular nature and it's relation to a constant and it's use... Effectively, it confuses the issues and thats not good for either side, some of the laws that come out of such events are, well, frightening.

But yar, back to my art, good luck for all this for those it affects directly.

Rebeccak
04-25-2008, 06:13 AM
It looks like the bill/s have been introduced - here is a pro-Orphan Works article:

Orphan Works 2008: House and Senate Bills Introduced
http://www.publicknowledge.org/node/1537

Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation (http://leahy.senate.gov/press/200804/042408e.html)
http://leahy.senate.gov/press/200804/042408e.html

From the second link:

What this bill does not do is create a “license to infringe.” In any of the above instances, if the users do not conduct a good faith search for the copyright owner, those users are in the same boat they are in now when it comes to infringement. This bill does not change the basic premise of copyright law: If you use the copyrighted works of others, you must compensate them for it. As an avid photographer, I understand what it means to devote oneself to creative expression, and I applaud anyone with the talent and commitment to make a living doing so.Another link on the subject:
http://maradydd.livejournal.com/376191.html

You can look for (the bill) on THOMAS (http://thomas.loc.gov/) when it's posted there. I expect it'll be up by tomorrow. (ETA: according to Alex Curtis over at Public Knowledge (http://www.publicknowledge.org/node/1537), the bill numbers you're looking for are S.2913 and H.R. 5889. They have PDFs which you can download, too.)A discussion of the differences between the 2006 and 2008 bill, which gives credence to the Illustrators Partnerships' worries over the 2006 bill, but allays artists fears about the 2008 bill:

http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003794301

At least one artists rights group, the Illustrators' Partnership of America (http://www.illustratorspartnership.org/), is strongly opposing the new bill.

The 2006 Orphan Works legislation offered few protections for artists, was opposed by photographers groups and photo agencies, and died in committee.

ChimaeraAbaddon
04-25-2008, 10:19 AM
Haven't read in detail the entirety of the two bills, but read the sections regarding the search and database aspects which seem like the key thing. (It's 3 am, so forgive me if I mess this up royally).

Questions that arise or don't seem answered are or problems I see:
Qualifying search and the related terms are very vague, and pushes most of the burden to the copyright office, meaning it's unknown how thorough or lax the provisions are going to be. Which makes it hard to judge if this is good or bad.

Multiple databases, never seem to be a good thing. As there's no provision for the databases being centralised... and thats unlikely considering they want it privatised... Well, if the provision doesn't require all of them to be searched for example, it could lead to a "look until you find some place they haven't registered" approach. And as well would mean artists would have to check periodically to see if new registries opened.

It also doesn't define if there would be a fee for artists registering their work... or the limitations for such fees. There doesn't seem to be a provision for the copyright office to regulate the fees or imposition of such fees, which is usually the case in other areas, or the other areas are centralised. You can maybe argue against this, but if you add the failure to address the database problem, in effect each private registry could become a mini-monoply.

The requirement for technology to do things like image comparison and make it accessible on-line seems... fishy. Such technologies as far as I know are hit and miss at best, especially based on the image presented. Not to mention the load such comparisons would put upon a database/server...

Skimming the rest I can't see any provision for someone else grabbing an image and registering it as theirs. From the language it would seem this registry would effectively usurp inherent copyright as means of proof and mean that anyone failing to register their work, could basically be taken to court by someone vulturing it first. It doesn't do so directly, but the registration would strengthen the infringers stance. And it's hard enough as it is to prove original creation as the burden of proof lies with the creator, not to mention the trend of "they with the most money to keep the lawyers going longest" winning cases. And in a similar vein...

It effectively undermines anyone outside of the U.S. having a claim to their work in a similar way.

I had trouble following the monetary side of things, with all the exceptions, but it just seemed a bit ridiculous. All the proof requirements now fall on the creator, effectively making it that you have to prove the theft was made with intent to profit. How do you prove something like that? To break my own suggestions about comparisons, if they catch someone robbing my house I better not have to prove that. If it isn't for the listed exempt groups or personal use, what other reason could there be? It also allows for people to simply use designs, etc, that they would have had to pay for, or hire someone for, without worry.

... and here most of my brainpower runs out... hopefully I didn't misread this and am babbling nonsense.

What I don't get is, if the issue at hand is little old ladies and their photographs, and musuems and other non-profits... why not simply make provisions for personal and non-profits to have limited or no damages applicable to them with the same requirement of payment should a holder come forward? Same as this bill states now anyway. That way you basically do a broad sweep of the subject, without all this complexity. It's still not entirely fair to the creator, but still better than this demon. Or at least freakin limit use of the registries/bill to those areas... since right now, this just seems to open up avenues for commercial abuse.

Though reading my own words, even such solutions seem contrary to the spirit of law and common sense. But the whole bill seems to be just as whacky. This whole thing seems like a way to create a loophole around inherent rights... Gah, stuff like this is why I can't push myself to be a lawyer anymore. It seems to be about abusing the people, not protecting them. And half the people, those usually without a stake in the arguement, support the abuse.

Rebeccak
04-25-2008, 05:27 PM
Just received this:
FROM THE ILLUSTRATORS’ PARTNERSHIP

Both House and Senate versions of the Orphan Works Act of 2008 can be downloaded from the IPA homepage:

http://illustratorspartnership.org/

Many groups are coming together to oppose this bill. We’re preparing letters you can customize and send to your representatives through our push-button link. Please stay tuned and we’ll give you the tools we need to make our voices heard.

For additional background on Orphan Works, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership....earchterm=00185 (http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185)

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.I think the jury is still out on how "diabolically evil" these bills are. Incidentally, as of this writing the text of the bills are not available on THOMAS (http://thomas.loc.gov/), just via the Illustrators Partnership site. I would go to the source (THOMAS (http://thomas.loc.gov/)).

rgagnon
04-25-2008, 08:21 PM
These are my major concerns and will be a focus of my letters to my legislators:

1. The bills favor the wealthiest of copyright owners. This isn't intentional, but the better known the copyright owner, the less chance that the work can be orphaned. For example, Disney's copyrights are fairly well known and not likely to be infringed, but less noteworthy artist works can easily be orphaned, especially when copyright notices are cropped out of the images. Requiring contact information on everything that could potentially be orphaned could conflict with privacy laws.

2. The bills turn the default state of all created works, published or unpublished, into public domain. Unless the copyright owner provides contact information for every created work, it can be orphaned. Diaries would have to have contact information on them to avoid being turned into orphan works (privacy laws could be used in this situation). Every family photo would require contact information to avoid being made an orphan work. Even if contact information is placed on those items, the minute a person moves, they would be obligated to update all that information to avoid it being orphaned. The inability of a copyright owner to keep current information on all created works will ransom those works to being orphaned. This effectively removes copyright owners wholly being in control of what is done with their works. Everything they create is in public domain unless they take action to prevent it from being orphaned. This is not in consonance with the Copyright Act of 1976 which eliminated the requirement to file for renewals of copyrights because of pervasive abuses where copyrighted works were being commercially exploited whenever the owner forgot to renew the registration. The orphan provisions are more onerous because they can relax copyright restrictions when the copyright owner cannot be found. Earlier copyrights prevailed for their terms of length. With the orphan provisions, a work could be public domain the minute it is created--unless the copyright owner takes steps to prevent it. The Copyright Office's report intentionally did not exclude unpublished works, so many personal items can find themselves in an orphan status because nobody thought they'd have to tag everything they write, draw, and photograph, to avoid their personal creations from being deemed orphaned and published without their permission.

3. The bills are overly broad. They have been designed to cover very specific needs, such as allowing the restoration a family photo without the permission of the photographer (copyright owner) who took the photo, or museums/educational institutions creating works from old photos and journals. These bills go far beyond the remedy for preserving this country's history. Considerable commercial abuse can occur because of limitations of when damages can apply. Both versions of the bills have very onerous language granting copyright protection to infringers who create compilations or derivative works, "Derivative works and compilations. This section clarifies that a user who qualifies under this section shall not be denied copyright protection in a compilation or derivative work based on the orphan work contained in the compilation or derivative work." This would allow an infringer to claim copyright on a clipart package or website compilation containing orphaned works. I don't think this would usurp the individual copyrights, but it does a compiler far more rights than should be tendered solely because that person collected orphaned works.

4. Clarification of Fair Use standards will provide the greater freedoms, for nonprofit organizations, to make use of orphaned works to preserve our country's history. This will solve the most pressing concerns that have been addressed about copyright orphans since nonprofit institutions have already been granted a wide latitude in this area. Even Marybeth Peters, the Copyright Office Register, has already noted that innocent infringements have not been strongly penalized: "In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements by nonprofit educational institutions, libraries, archives and public broadcasters, the court may reduce the award to zero." The risk, for nonprofits, to use copyright orphans is very small and does not warrant the application of the overly broad statutes of these bills.

The bills take away some of the copyright protection that every copyright owner enjoys without providing anything in return. Registered copyrighted works are as liable to be orphaned as unregistered works if the owner does not ensure current contact information is in the registry. Unless somebody can profit from the orphan legislation, there is no reason to want to see these bills become law. There are many reasons to not want these bills to become law. It's hard to say how far things can be abused. Abuses will occur because the bills are so overly broad and contain few remedies that will prevent widespread abuse. One only needs to look at the multiple producers selling "Night of the Living Dead" in a DVD store to see how commercial entities will try to profit from mistakes made in copyrights (that movie didn't have a copyright notice on its original prints). Large scale commercial copyright violations have been avoided because of the fear of financial penalties. These bills largely remove those penalties in instances of "good faith" searches for copyright owners. Exactly how good those "good faith" searches will be is hard to gauge because there is a financial interest in not finding the copyright owner. The success of these laws will be measured by how many productive uses of orphan works occurred during the period of review--not by how many copyright violations occurred.

rgagnon
04-25-2008, 08:44 PM
Is it going to prevent the ability to print screen? If not, it's useless. I wouldn't trust my legal rights to anything that can be easily hacked or worked around and all software security is eventually bypassed by someone determined enough.

Do a Google search for "defeat digital watermark" and you'll see a note that the DCMA has deemed some of the search results illegal and forced Google to block them. That means that the current digital watermarking technique has been beaten and, like any hacking venture, that technique can be found.

It is amazing that creative people aren't uniformly concerned about this. The bottom line is that there is nothing to be gained by the legislation, but potentially a lot to lose.

switchblade327
04-25-2008, 09:46 PM
It is amazing that creative people aren't uniformly concerned about this. The bottom line is that there is nothing to be gained by the legislation, but potentially a lot to lose.

Absolutely. Letting a law go through because it seems relatively harmless is assanine. They need to prove something is broken before legally fixing it. Orphan works aren't a major problem for most people and the current system works as well as we can expect. Surely the House of Representatives could find something more important to legislate then this...

dmedillus
04-25-2008, 11:38 PM
Here's the latest from Mark Simon:
http://mag.awn.com/index.php?ltype=pageone&article_no=3615

Please read it!

There will be a call to action soon- where your voice can make a difference. Get informed and ready to act.

Thanks!

flatulentFuzz
04-26-2008, 05:55 PM
It also turns my stomach how an obvious bill to exploit artists by large corporations is cloaked in a need to help you save your granny's precious photo album or to better serve the public by allowing material to be used for documentaries and similar educational productions. That last bit is especially insulting in light of how little the government really cares about education (funding for RIF is going to be cut for 2009).
I completely agree with this stance.I mean,why introduce ANY orphaned works bill at all.
What difference is it going to make if works of art cannot be viewed by the public because the creators cannot be found?
And how many orphaned works actually merit being put in a museum?

“This legislation will help bring together potential users and owners of orphan works,” said Leahy. “But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission. With this bill, we can preserve important parts of our personal and national heritage, without giving a free license to infringe on established copyright protections.”



“There are thousands of artistic creations around the country that are effectively locked away and unavailable for the general public to enjoy because the owner of the work is unknown. Identifying the owner of a copyrighted work is difficult in many cases and represents a huge liability to those who would bring the work into the public domain without permission,” Hatch said. “This bill represents a commitment from Congress to unlock orphan works so the general public may once again enjoy them.”

“Too many valuable works are unused because their creators are unknown, and potential users fear excessive liability,” said Berman. “We must act to lower the legal barriers that keep these works from the public.”

“Millions of copyrighted works are effectively ‘locked up’ and unable to be enjoyed by the public due to our current copyright system,” said Smith. “As a result, investments in new works and expositions by libraries, museums and others are frequently not undertaken due to the possibility of lawsuits and large statutory damage awards. By placing reasonable limitations on liability, while ensuring that owners receive compensation for the use of their works, the bills introduced today will help reduce uncertainty and encourage creativity.”
Please read the underlined text and try to understand why this bill is stupid in itself.
Now theres the part about 'The creators being unknown'.What if the creator never WANTED their work to be publicly displayed?
What if whoever obtained the work did so in an illegal manner?

I think orphaned works should retain their copyright irrespective of whether they are good enough to be put in a museum or better national heritage.

Orphan works aren't a major problem for most people and the current system works as well as we can expect. Surely the House of Representatives could find something more important to legislate then this...
One of the most valid points made here.
I mean,how many people go to museums saying "I really want to see pieces of art made by artists who cannot be located presently"

EDIT:I must say it was pure genius to have this featured in the cgtalk newsletter,and I'm going to tell every artist I know

sectora
04-27-2008, 06:53 PM
I think this whole legislation is frightfully hostile to all artist that work in this area for a living adn for free expression.

We the stakes vested by major corporations this could be big bucks for the big Corp. people while leaving the artist robbed from one of his ways to earn a living.

Albert

AJE
04-27-2008, 10:13 PM
I wonder if there's a way to cover yourself if this goes through, by certain methodologies.

For example, say I as an artist create a piece, and sell it to a one-man corporation that I own for $1.00 (whether it is a commissioned work or not). Then my corporation owns the artwork.

If you are doing the work as a commissioned piece, the client would pay your corporation, (not you personally).

Make sure your corporate taxes have the purchase of every piece of art that you make and sell to your company in them. If you file your corporate papers quarterly, you would be conitnually updating it every three months.

What if your company is the default owner for life of all works created by you(by means of an actual, tangible contract), even on commissioned works? Your company would transfer the rights on commissioned works immediately after payment from the client is received.

I don't know if that would work... but we need to start thinking along these lines in order to protect ourselves.


Can you imagine if Hollywood got involved?
"I just found a movie on a torrent site, the credits were cut off... I'm going to take it and just throw it onto DVDs and make some money... because it was 'orphaned' online"

It's a redicules example, but it illustrates to me how absurd this proposed law is.

____________________________________________________________________________


IT DOESN'T MATTER WHAT IS ACCEPTABLE OR NOT IN ANY PART OF THIS BILL!! There are many reasons to kill the bill, but it should be killed for this
ONE REASON ALONE!


What is of utmost importance is that people REALIZE that they are going to have to PAY TO PROTECT THEIR OWN ARTWORK, the PRIVATE CORPORATE REGISTRIES OWN YOUR COPYRIGHT, until such time as you BUY IT BACK FROM THEM!!

So...
1) I make some visual art/writing/song... and by default, I don't own the rights to it.
2) I have to pay an American Corporate entity to, in essence, buy back my right of ownership
3) BUT, the 'ownership' the American Corporations are selling back to me is not 100% ownership or protection... because other companies may not find the work in competing corporate registries (meaning that the ones I've reg'd with get missed in the client's search).


They are stealing your rights... not stripping them, actually stealing them... in order to sell them back to you - with loopholes for them to walk through.

THIS SOLE CONCEPT SHOULD BE ENOUGH FOR THIS BILL TO GET DESTROYED BY EVERY CREATIVE PERSON OUT THERE!!



Ya, I'm substantially pissed about this.

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