An Orphan Works Update From The Illustrator's Partnership

Backers of the House version of the Orphan Works bill are now asking artists and photographers to oppose the Senate bill unless it’s amended to contain at least the “minimum provisions” that appear in the House version.

Although they don’t say so, opposing the Senate bill in this manner is a vote FOR the House bill.

We’ve been asked to explain why:
The Senate bill is similar to the bill we opposed in 2006. The House bill (H.R. 5889) is the result of a year and a half of closed door negotiations between Congress and representatives and lobbyists for special interest groups. These groups have agreed to either endorse the House bill or remain neutral to insure its passage.

The House bill endorses the concept of coerced “voluntary” registration with commercial databases and seeks to make these databases infringer-friendly.

• It would require infringers to file a simple “notice of use” before they infringe.

• It calls for an archive of the notices to be maintained by the Copyright Office or an approved third party.

Why do backers of the House bill want these databases to be infringer-friendly?
Because to thrive, commercial databases (registries) will have to do a robust business in rights-clearing and orphan certification. That means encouraging infringers to infringe.

How will these registries work? No details have been given, but experience with image banks suggests the following:

For unregistered work: infringers will use the registries to identify pictures that aren’t registered. Infringers will probably pay the registry a search fee, then use or market the “orphans” like royalty-free art.

For registered work: the registries will act as a kind of stock house: Users will go to them for one-stop shopping to clear rights to your pictures. The registry will probably charge you a commission when they do.

In other words, urging Congress to pass the House bill makes very little sense to us unless your business or organization expects to become a commercial registry. We believe the only way to oppose these bills is to oppose them both.

If you agree, now’s the time to write Congress or write again.

Tell Your Senators and Representative to Oppose the Orphan Works Act


Don't Let Congress Orphan Your Work!

Use mass transit if you're heading to the World's Fair this summer

A new image is up on my homepage. It is partially inspired by my recently acquired subway map and the many trips to Flushing Meadows I've made on the 7 train.

World's Fair Subway Map

I found this treasure at Park Slope's Fifth Avenue Street Fair over the weekend. It is map of the New York City Subway system published in 1964. See it in all its glory here

While not as iconic as Massimo Vignelli's 1972 map (and 2008 reproduction), it still is pretty interesting to look at. If for no other reason than to see the changes to New York over the last 44 years.

Orphan Works Bill-Contact Your Elected Officials

The Illustrators Partnership has set up a CapWiz website to take action against the recently introduced Orphan Works Bill. The site has a handful of letters that can be edited and sent to your elected officials by email. You can also print them out and fax and/or mail them to your representatives.

This process will take you less than 5 minutes.

Orphan Works Panel-Save the Date

Please don't let your artist friends starve

Drastic changes to U.S. Copyright Law were introduced last week under the guise of freeing up orphan works. Orphan Works are images whose creators can not be found. The bill (HR-5889 and S-2913) would allow the use of copyrighted works provided they performed a diligent search for the creator. Supporters argue that at long last they'll be able to digitally restore their grandparents wedding photos or that the public library can display photos of town from 100 years ago without worrying about being sued by the copyright holder should they come forward.

What these supporters fail to realize is that many of these scenarios are protected under the "Fair Use" provisions of current copyright law. So to remedy a percieved problem they have proposed a law that would threaten the livelihood of every freelance artist working today.

Under the provisons of this bill creatives would have to register work with yet to be created private registries in order to prevent their work from becoming orphaned. Now while that doesn't sound terrible on the surface it is worth noting that photographers and illustrators produce a significantly greater amount of work than any writer or recording artist. The time alone required to register every drawing, sketch, painting and photograph would be prohibitive. Also, because these registries would be run by private companies, not the government, it is going to cost an artist money to register each image. Even if this fee is nominal, say in the range of $10, the cost of registering work could easily exceed $10,000 in one year. Furthermore, if there were multiple competing registries artist would be compelled to register their work with more than one, possibly all, of these companies. The cost of protecting the copyrights could easily exceed the annual income of many artists.

When introducing the Senate version of the bill, Sen. Leahy of Vermont claimed that this bill would not drastically alter current copyright law, that this would not be a rights giveaway. He claimed that only those performing a thorough search would be able to use Orphan Works. But what exactly constitutes a thorough search? Would a search of 2 or 3 registries be sufficient? An artist who registered their work with a competing registry would now have orphaned his work, despite his best efforts to follow the law and protect his work. How would the search work? Would it be a keyword search? Would it be similar to a Google Image Search? Anyone who has every used a search engine knows that overloading it with keyword makes it otherwise useless. And what would is to stop unscrupulous users of orphan works for diligently searching for the creators of works in places they know will lead them to dead ends? What would stop someone intent on stealing images from spamming or calling in the middle of the night to make sure calls to the artist went unanswered? In my experience, as an illustrator of little consequence, I have received many inquiries about creating work for free. If this bill were passed I would be forced not only to respond to each of these ridiculous requests, but keep track of them as well. Without clearly defining what a thorough search is artists everywhere will be at the mercy of publishers intent on exploiting work created by others.

Another feature of this bill that represents a radical departure from current copyright law is what happens when someone uses copyrighted material without permission. If this legislation passes those who illegally use a copyrighted work would have to pay the copyright holder only a reasonable license fee. Under the current law copyright infringers are responsible for not only paying a license fee, but are also liable for statutory damages and the copyright holders legal fees. Many artists are able to hire lawyers on contingency in copyright lawsuits because they will eventually be able to recover legal fees once the infringement is proven. This bill would render the fight for rights far more expensive than any potential award. Of course, this assumes that artists would devote the time and financial resources to fight for the rights of their work in a court of law. Most presumably, would not.

While the idea of freeing up work for use by public and educational institutions sounds noble, it is only a cover for allowing large corporations to profit from registries and steal copyrighted work with little consequence. The goals that supporters mention could easily be accomplished with legislation addressing and clarifying the Fair Use of provisions of the current law rather than crafting a law that represents radical departure from current copyright law.

If this bill becomes law, copyrights will be meaningless.

Now while this may not seem like a big deal to most people, copyrights are an essential part of any artists business. It is the copyright that prevents others from exploiting our work and profiting while we starve. If people are free to take the work of artists then in time there will be very few artists working in this country. Why would anyone be encouraged to draw, paint, sculpt, photograph or write if there were no chance to make a decent living with these incredibly rare skills?

In 2006 a similar measure was defeated. Let's hope history repeats itself. Please contact your elected officials in Washington and tell them to vote against this Orphan Works Act.

Far more information on this subject is available here and here.

(The image above is © John W. Tomac, 2008. All Rights Reserved. It is not an orphaned work of art.)

Putting a smile on your customer's faces

Over the past few months I've had the opportunity to work with art director David Waugh on a pair of assignments for ChannelPro Magazine. ChannelPro is a trade publication for Information Technology professionals servicing small and mid size businesses. Coincidentally, some of my friends from my days at RIT are now IT professionals.

Information Technology can be a pretty dry subject. Working with Dave is great because he tends to favor getting away from the literal and pushing the conceptual side of art. The image above was created for a feature on custome service. The spread can be seen on page 16 of this online edition of the magazine.

Below is another ChannelPro assignment. This was for a story on how the devices that keep us connected often make it more difficult to get things done. The spread can be seen online, on page 14.