Tuesday, May 13, 2008

Orphaned Works: Yep, there's more

An audio interview with illustrator Brad Holland.
"If you have never paid attention to copyright law, now is the time"

Lawrence Lessig on the U.S. Copyright Office Report on Orphan Works .

"I think this both goes too far, and not far enough."
Note that this refers to the Copyright Office Report; this video predates the 2008 bills. More on his blog here.

(Thanks for the link "Pseudonym")

More on the Orphaned Works Act of 2008

I devote a certain amount of time each day to “research”. Its’ my attempt to stay informed about what is going on in the artworld. This week its ALL about the Orphaned Works Act. I can’t help it. I’m fascinated.

What is this about, really?

It’s been suggested that this all started in 2003 with a NYT op-ed piece by Stanford Law School professor Lawrence Lessig (link here). Lessing contends that the Supreme Court decision to allow Congress to set the length of copyright protection “stifles freedom of expression by preventing the artistic and educational use even of content that no longer has any commercial value”. Lessing doesn’t seem to like the fact that there is a lot of artwork laying around out there that is not being “commercially exploited”. He also brings up the dilemma faced by museums and educational institutions when they want to produce an exhibit which includes sound or images with unknown copyright status. A possible solution he suggests is a database modeled after the US patent registry: Register each piece of artwork at $50 per entry. Registration must be renewed every 3 years*.

Eventually, Senators Leahy & Hatch requested a report from the Copyright office. The copyright office conducted a study and in 2006 released its 217 page report (get your free pdf here!). I’m only partially through it but so far it is very interesting.

The copyright office wanted to know if Orphaned Works was really a problem and if so, how much of a problem. They were pleased with public response: 850 statements were submitted. 722 of those were individuals; the remaining were aggregated comments from institutions/corporations. Later, a group was invited to a roundtable to discuss the issue. [just an observation:850 responses is all they could get? 850 is enough to alter national copyright laws?]

About the museums and educational institutions: These entities would like to display artwork and sounds of unknown copyright status. They would like to post their collection on the internet so that it is accessible to the public. They are willing to perform due diligence to find the copyright owner. In the event that the owner cannot be located, they would like to display the work anyway to educate the public and preserve our cultural heritage. Should a copyright owner surface and object to the usage of their work , these intuitions are perfectly willing to immediately remove the content. In return, they ask not to be sued. This seems to me to be a perfectly reasonable request, and shows respect for the creator. I have no problem with the request or the solution.

Now, what about commercial interests? Not surprisingly, it’s a little different and nowhere near as respectful:
“the proposal would limit the ability of the copyright owner to obtain full injunctive relief in cases where the user has transformed the orphan work into a derivative work like a motion picture or book, preserving the user’s ability to continue to exploit that derivative work. In all other cases, the court would be instructed to minimize the harm to the user that an injunction might impose, to protect the user’s interests in relying on the orphan works provision in making use of the work.” [U.S. Copyright Office Report on Orphan Works pp 11-12]
Boy, those users (vultures) sure are well protected. I wonder how many of the 850 respondents worked for Time Warner, or any other major studio?

Its the commercial usage that I strongly object to. Its that these bills not only open the doors but invite abuse. I dont have a problem with museums, libraries, researchers, art students (or any students), other artists etc. using the artworks as long as it is not for profit. But if the work is taken and reproduced for anothers profit, its theft. Period.

What about that database? Well, it turns out they looked into that as well and it will cost the Copyright Office upwards of $35 million. That’s kinda pricey for their budget right now so they don’t want to do it. Those 850 respondents were concerned about the search costs in finding copyright owners…. Maybe there is a solution on page 200 that doesn’t involve charging artists $50/image renewable every 3 years. I haven’t gotten to that page yet…

So there is a big push to get these two laws into effect quickly. Why? Well, its an election year. We get a brand new president (Yipeeeeeeee!!!) and with that brand new president comes changes. They don't want to risk possible changes to the Sub-Committee.

* I came up with what I thought was a very high figure: $10/image in my post yesterday. Lessig has since changed his figure substantially. To be fair, his point is not to establish a price but to make copyright owners more active in maintaining their rights. I see too many holes in this method to agree.

Sunday, May 11, 2008

Shawn Bentley Orphan Works Act of 2008

There's an old saying-- "You know a politician is lying if his lips are moving." I try to give them a tiny bit more credit. Not much but a little....

But the hairs on the back of my neck stand up and my B.S. detectors go on high alert whenever a politician claims to be inspired to action because of a little old lady in [fill in the blank with vague out of the way location that implies humble origins....]

I'm a bit on the dorky side, so when I get emails that say 'this horrible bill is being introduced to Congress, we must stop it now....' I actually go find the bill and read it. If its a particularly amusing piece of legislature, I'll also try to find transcripts. The statements tend to be equal parts hyperbole, melodrama, and pompous posturing (even if they happen to have good intentions, I still find it amusing).

This is a particularly good one from Senator Leahy, in reference to the Shawn Bently Orphan Works act of 2008:
"In practical terms, then, what does this mean? It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so. It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendents. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer. "

Yes, please, lets talk about this in practical terms..... I would love to see the statistics on how many people have been threatened with copyright infringement for restoring personal family photos. While we're at it, how many have actually gone to trial, much less won?

Shouldn't these "concerned" Senators be working on something more important, like I don't know, something that is costing us a lot more money and actual lives... perhaps healthcare, or possibly a war? When a senator moves, its typically in response to money or an election (yes, I am being cynical but this is my soap box....). What lobbyist could possibly be interested in "Orphaned" works of art?

Whether or not the intent of the bill is to protect our "cultural heritage", the way it is written opens a massive loophole that I think is extremely harmful to artists.

Just for a moment, I'm going to put myself in the fantasyland of the authors. I'm going to pretend that this really is about that poor scared lady in Vermont who is afraid to fix grandma's torn wedding photo. I'm also going to suspend disbelief and pretend that a database of every piece of artwork by every artist in the United States is not only feasible but is easily searchable with keywords. I have a photo of my grandparents that was taken on their wedding day in 1930. I'm really worried that if I scan it and photoshop the tear out, the photographer will find out, be angry, and sue me. I think Ill use this handy government database to find the photographer and ask if it is ok to fix his damaged work of art. Hmmmmm... what keywords shall I use? "Grandma's wedding photo" oops, I got over 6,000,000,000,000 hits for that, maybe I should narrow it down. How about "White satin dress, black tuxedo, man standing, woman seated, wedding, 1930 " This should be easy, how many photos could possibly fit that description?

The reality: This opens a giant loophole. With this bill, it would now be legal to find a piece of artwork/logo/photo/whatever and use it for a book cover/t-shirt/movie prop/ coffee mug/whatever. All they have to do is "try" to find the artist when they presumably dont know the title of the work or the author. "can, red, white, label" Darn, didn't find it.... let me try this database.... don't see it! Guess that means its mine!! Andy Warhol's soup cans? Never heard of it.

A private enterprise will more than likely be enlisted to create the databases. Obviously they will charge for its use. Do they charge the artist or the user? Nothing personal, but now this is a business. The artist is a built in customer base with no choice in the matter if they want to protect their property. The artist will continue to create and thereby bring in more revenue. Let's say its $10/image. I'm a relatively young artist at the beginning of my career. Even so, I have a couple thousand paintings and drawings. Lets say I have 2,000. Thats about $20k. For a person to prove they have performed due diligence in finding an artist, they need to search two databases. The cost to protect my work just doubled (unless the government approves more than 2 databases....then it goes up). But hey, its worth it right? This will prevent someone from stealing my work (wave the magic wand that makes me forget that my work was already protected by law for free, without registering and with much stronger penalties for infringement).

By the way, who is Shawn Bentley anyway? Shawn Bentley worked with Senators Hatch and Leahy to author this bill. Sadly, Shawn Bentley passed away so they named the bill after him.

Very sad. So is it rude to ask? Seriously... who is this guy? He was a lobbyist for Time Warner.

If the authors were really concerned about protecting family photos and ensuring that museums and non-profits were able to "preserve our cultural heritage", I would think there would be more written in the bill specifically mentioning these issues.

Instead there is a lot written that insures that the onus is shifted from the copyright infringer to the copyright owner. It also takes away an artists right to define how their work is used after the infringer tries to find the artist.

Instead they provide a laughable definition of "Reasonable Compensation"
(4) REASONABLE COMPENSATION- The term `reasonable compensation' means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

A willing seller? What if I never would have sold my work to be used in that manner? There must be something in there to protect the creators of the original work right? Something to protect the integrity of the art?

Um... no actually:

        `(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney's fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

For added smoke and mirrors, there is a second, nearly identical bill as well. One is going to Congress, the other to the Senate. The devil is in the details, my friends....

The Bills:
Shawn Bentley Orphan Works Act of 2008
Orphan Works Act of 2008

Want to say something about it?
write your senator and congressman, if you don't know who they are, you can look it up here:

Or there are some online petitions, here is one:
Illustrators Partnership

More info in case my rant wasn't enough already...
Articles/ Blogs:
Animation World magazine

David Rhodes commencement speech.
Leahy is "disappointed" :o(


Association of Research Libraries reports bill is stalled

Friday, May 02, 2008


6 x 8 oil on canvas board: