Thursday, June 15, 2006

The Orphan Works Bill infringes on your copyright!

You'd think having the U.S. Copyright Law in place would be a good thing ... Register your work, and ta-da! Your art is protected from infringement by bad people who don't want to pay you for your work. Well it is, until law-makers start to fiddle with Copyright Law and mess it up for the hard-working Americans who paint, draw and shoot pictures for a living. Grr!!

What am I growling about?

There's a Bill -- HR 5439 IH a.k.a "The Orphan Works Act of 2006" (Go read. Don't be afraid of the legalese.) -- that's been introduced by Mr. Smith from Texas. (I guess this would be Representative Lamar Smith, R-21) This bill aims to amend the Copyright Law to cover the useage of so-called "Orphan Works".

I'll give Representative Smith the benefit of the doubt. It's probably his ignorance of the workings of the art business that helped create this Bill and get it introduced in the first place. (Let's help set him straight.)

"Orphan Works" is what artwork is being called when the creator and copyright holder of the artwork cannot be located, but someone who is NOT the artist wants to USE that art for something they're doing. The Orphan Works Act basically allows this stranger to take and use the art if they "can't find the artist" through "reasonable means".

In other words, the bill conveniently creates HUGE loopholes that clears the way for unscrupulous people to rob Individual Artists of their Rights to license and sell their own artwork as they (and only they) see fit.

Orphan Works makes no distinction between work that is old enough to be in the public domain and work that may have been created today. It's all fair game if it has no identifying marks or credits on it.

Artists already have to put up with the occasional unprofessional who hires us for a job and then (after we finish it) decides the artwork "is not what they expected" and then won't pay us for the work or even just the time we invested. Their justification for not paying is "but it's just art...It's not like it's construction or accounting or something important like that".

So let me clarify something. "Art" is not just the "foofy" or "high falutin' " paintings that hang in museums and that were painted by dead guys. This Bill rolls into and over the artwork created for everyday use in things all around us.

Let me give you a visual: what would our stores look like without graphics on the signage and designs on the packaging on the shelves? How interesting would a book or CD look without a drawing, photo or design of some sort on the cover? Not very. What if photos and drawings disappeared out of the newspapers and magazines? What if photos and art disappeared off the INTERNET so it was all just text up in here? What a visually boring world we'd live in! This is the art that is in danger.

Modern manufacturing and publishing uses a lot of artwork and photography that gets printed and reproduced that never credits the artist-- either because of simple oversight or because no manufacturer really wants to have the artist's signature on the book cover or on that little pad of stationery paper on sale at the dollar store. If a staff member keeps sloppy records, or if the staff turns over and that company handles a mix of new and public domain artwork, just how are they supposed to ID this work if it's in their files from a previous job?

Then what IF the artist they think it MIGHT BE doesn't maintain a website because they're too darn busy ACTUALLY drawing to make a website and maintain it so that artist is NOT "Google-able"? (Yes, not everyone is obsessed with the internet. Imagine that!) What is going to constitute "reasonable efforts" to locate the copyright holder in THIS SCENARIO?

You can't "Google" fragments of artwork yet.

And we won't even get into the whole issue of art "sampling". (yes, like what happens in rap music)

Then there's the other more subtle problem when an infringer is finally caught by the artist. Normally after getting busted the User has to pay the artist for the use of their artwork. In this version of the amendment to the law the subtler term "reasonable compensation" may mean a world of difference to the dollar market manufacturer than it would to the high-end market manufacturer. Both markets VERY different ideas of what's "reasonable compensation"!

I should be paid a fraction of my going rate because someone helped themselves to my work? Excuse me, but that is bad form.

I've worked in comics publishing, with and for freelance designers, and for manufacturers. I've been on both sides of the fence. I can see all too easily how the information for any particular artist can fall through the cracks and be lost by the manufacturing staff if someone is not on the ball or if staff simply turns over and someone's office gets cleaned out! Work that in no way shape or form been abandoned can get caught in the net of a false "Orphan Work" claim. This is a problem.

Artists, you'd better read this HR 5439 IH Orphan Works bill and then do something about it. You may also read the original Copyright Law in effect.

Perhaps in reading the bill you will misunderstand and think it's just trying to help those kind folks who are trying to get things done for education's sake and for those great PBS shows. Oh, if only that were so ... but no. The unscrupulous manufacturer is out there and they'd have a FIELD DAY.

The Illustrators Partnership has put together an excellent overview of Frequently Asked Questions -- FAQs asked by artists and non-artists alike -- that covers just WHY this Bill is SUCH VERY BAD NEWS FOR ARTISTS. Please read it.

Then when you understand, write to your Senators and your Representative. Our Nashville Senators are Bill Frist (R) and Lamar Alexander (R) and our Representative is Jim Cooper (D-5). Write to both their DC and to their Nashville offices. Voice your concern and ask them to get rid of this amendment because it's really bad for us.

Heck, write to Mr. Lamar Smith, too, just to get him up to speed.

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