Mind Your Business: You Will Lose All The Rights to Your Own Art


#1

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!


#2

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?


#3

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!


#4

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.


#5

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…


#6

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?


#7

For the benefit of objectivity…

[http://www.copyright.gov/docs/regstat031308.html](http://www.copyright.gov/docs/regstat031308.html)

                         
             [b]Orphan Works[/b][img]http://www.copyright.gov/images/blank.gif[/img]
                  [img]http://www.copyright.gov/images/blank.gif[/img]       

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

             [b]The “Orphan Works” Problem and Proposed Legislation[/b]

              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.

       [b]The Orphan Works Problem[/b]

       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 [i][Report on Orphan Works](http://www.copyright.gov/orphan/). [/i]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. 

       [b]The Proposed Solution [/b]

       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. 

       [b]Response of the Copyright Community [/b]

       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.)

       [b]Conclusion [/b]

       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. [i]See also Davis v. The Gap, Inc.,[/i] 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.

#8

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.


#9

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


#10

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

[font=TimesNewRomanPSMT]page 129
[/font]

[font=TimesNewRomanPSMT]“If the user performs a reasonably diligent search and cannot locate the owner, it[/font]

[font=TimesNewRomanPSMT]can go forward with the use. It would be required to provide appropriate attribution to[/font]

[font=TimesNewRomanPSMT]the author and owner, if it knows their identities, in the derivative work it is creating. It[/font]

[font=TimesNewRomanPSMT]should also be prepared to pay reasonable compensation to the owner if she surfaces and[/font]

[font=TimesNewRomanPSMT]makes a claim for infringement, given that in most cases the use will be commercial and[/font]

[font=TimesNewRomanPSMT]not eligible for the elimination of monetary relief for noncommercial uses. The user can[/font]

[font=TimesNewRomanPSMT]be confident, however, that if the owner surfaces – even at an inopportune moment like[/font]

[font=TimesNewRomanPSMT]the middle of filming of a motion picture – the user will be able to continue to prepare[/font]

[font=TimesNewRomanPSMT]and exploit the derivative work under our recommendation, provided it pays reasonable[/font]

[font=TimesNewRomanPSMT]compensation and makes reasonable attribution to the author and owner.”[/font]


#11

They really gotta stop all these “one solution fits all” laws.


#12

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.


#13

Adding an email/name on your image? All someone has to do is remove it.


#14

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?


#15

If those goes through, im either:

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

#16

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!


#17

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.


#18

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

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


#19

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


#20

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”.