Comments on: Orphan Works: Half a loaf

The world of copyright may be about to change because of pending legislation, but in a guest post, James V. DeLong, says that Congress' hard work is only beginning.

[m2mc]

For another perspective on this issue, Prof. Lessig, NYT, today: http://www.nytimes.com/2008/05/20/opinion/20lessig.html?_r=1&ref=opinion&oref=slogin

[Travis Ernst]

No standards have been setup in the bill/s for how "exhaustive" of a search a person must attempt to do in order to find the owner of, for example, a photograph. It could be as simple as posting a message on craigs list or on a local paper never reaching the person who owns the picture. Secondly, the database talked about in the bill does not even exist yet. Nor do the "standards" for what the values that would be paid back for songs or pictures used in marketing for example. What would be the value of a independent song? If we go by RIAA's standards it's in the tens of thousands. In other eyes is may only be a few hundred dollars. Same for photographs. What would you value one? Now consider the value of an Ansel Adams photo. What's the difference. The court has no standard or guide to go by.

Artists need PROTECTION with a bill like this.

[artkaf]

Dear Charles,
Your comments about the Orphan Works Act of 2008 were wonderfully written to expand upon non-commercial use of orphaned works. However, as a professional fine arts artist that licenses my paintings of childhood, your article does not address commercial infringements; ?so called? orphaned works being used for profit. I would like to share with you my concerns about the current Orphan Works Act of 2008 which is on the floor of the Senate, without debate, and on the floor of the of the House?
Charles, I?ll be gentle.
As part of the creative community, we would also enjoy an extensive view of new works from the archives of a library. History is wonderful and revealing.
I enjoy donating and sharing my work with non-for-profit organizations and institutions. It is an honor to grant permission for the use of my paintings to those organizations in which I have a common interest. However, this bill makes it easier for those organizations in which I do not agree to use my artwork without my knowledge.
On one occasion, my painting of children using their hands to do ?Here?s the Church, Here?s the Steeple?? was displayed with a quote which horrified me. As artwork is frequently used with a caption, often the words speak the loudest. They clearly misrepresented the intent of the artwork. With current copyright protection, I was able to say ?take it down.? Because today?s law protects me by the possibility of my being awarded up to $150,000 in damages, this is a fair deterrent. And it Works! I have never had to do anything but ask the infringer to ?cease?. If you read about the damages of using my artwork under The Orphan Works Bill, damages are not offered, I must pay my own court fees, pay my attorney bills, if I WIN. The infringer?s punishment? He/she may continue distribution, and pay the infringed a ?fair? royalty or fee. As a professional licensee, I contract legitimate royalty?s for my paintings activity. Let?s be honest, this particular royalty or fee is called punishment. (I?m trying my best to have a sense of humor.) From my perspective, this bill allows the courts to place me in a working relationship with someone in which I do not wish to work. Conditions that I include in my contracts, i.e. quality standards, material quality, approvals, etc. are overlooked and not addressed in this bill. When the judge offers the verdict, which law does the judge use; the Copyright law of 1976 or the more recent Orphaned Works Act? One law protects the infringed (that?s me!), the other law is lenient to the infringer?
For each painting completed in the past (many hundreds of fine arts paintings, thousands of sketches and designs, many thousands of photographs), I am forced to participate in a registry, or registries that do not exists. Rules for this registry or these registries have not been established. Can I register collections of art rather than a fee for each individual image? How do I find the right registry? Don?t I need to be careful of those that see the financial rewards and create registries that aren?t legitimate? It says there would be a description, a legal description? Would my painting of children with the flag, that was presented to President Bush in the Oval Office, be described as ?pastel painting, 30? x 40?, 7 children painting a flag on the wall with their hands, different ethnic backgrounds, window on side with light coming through, paint on the floor, a ladder, one girl wearing a head scarf, banner with God Bless America?..?? If a digital image is required, must artists learn to upload, download, scan, etc? Why is this bill creating more questions than answers??????
To protect my work, I am very confused as to what I am to do in the future. Do I still use the Copyright Office? It?s a government agency but I hear that these registries are not. My images that are currently copyrighted?are they orphans until I register again?
Of course I could go on and on, but I would prefer to leave the rest of this letter for you to complete?
Please let American painters of every medium, photographers, sculptors?let tiny hands, students hands, or professional hands know whey we are better off with this new bill? Before you start, please don?t repeat two things?
? ?This is a great marketing tool and way for people to find artist and their works!? Personal and group websites are for marketing. People that find it actually see my painting of the children and the flag ?The Dream Keepers? along with my entire gallery of children. As a professional, it?s in every book and on every product.
? ?When you find someone using your work?you get paid fairly!? This is a back door approach to business, not very ethical.
Charles as you write about how exciting this bill is, please take time to read it all the way through, look for balance. Read it as someone who creates or has a talented child. Most people that enjoy art today are unaware that a burden has been placed upon them?today?they don?t need to know.
Brilliant works are created each and every moment by creators that will never know about registering their work. Proud artist maybe unaware that someone is photographing their work at a county fair, a local art competition, downloaded from the internet?How can you find these proud owners from a ?reasonable diligent? search? As a demonstration, I received an email from a proud mother showing off her sons work. I created a beautiful mug in less than 30 minutes by extracting the artwork. This is how easy it is to steal artwork and use it for commerce. (I did not know the young artists or his mother, but I asked for permission. This student, his mother, his art class and teacher are all actively fighting this bill now.)
For when a creation is completed, it is loved by its owner. It is NOT an orphan.

Charles, if you?ve read this far?thank you!

Blessings,
Kathy Fincher
www.kathyfincher.com

About the artists:

As a designer, writer, and owner of the popular Mama says?® products and paintings, Kathy Fincher?s livelihood is in licensing. As one of the most licensed inspirational artists in the country, Kathy?s is considered a ?feminine Rockwell? for her expressive paintings of children. Kathy?s work helps to bring attention to the needs of today?s children during a time in which the American family is challenged.

Many charitable non-for-profit organizations such as World Vision, The American Cancer Society, The National Mentoring Partnership, The World Children?s Organization, the Hospital Foundation, schools, institutions and more are beneficiaries of Kathy?s prints and gifts portraying children.

[artkaf]

This is my response to the article from Charles Cooper title Half a Loaf : Orphan Works

thank you,
Kathy Fincher

[louis_gaff]

Stating my position with the Orphan Works Bill: A very very bad idea.

From a blog that I posted regarding the Orphan Works Legislation:

"The Orphan Works Bill effectively nullifies the copyright protection of the uncopyrighted works of artists in the United States. According to this legislation, any piece of art, like- any photo that is shared on flickr, any website that you put up, any little scribble, as well as ANY MUSICAL COMPOSITION, anything you created and decided to share without first registering it, NO COPYRIGHT PROTECTION IS AVAILABLE. Meaning that if you took the picture and if you do not register it, then basically someone less deserving can STEAL this from you and use it as they please. This bill effectively ends a musician's and visual artist's unassigned copyright, there would be nothing you can do about it. NOTHING.

This thought keeps me on edge: What if the effect of this legislation, if passed, is a community of musicians, artists, photographers, etc who are all afraid to let someone else even look or listen to their creation for fear that someone will steal it? I can't imagine a more frightening scenario. Music is meant to be listened to! Art is meant to be gazed upon! We would undoubtably be surrendering our ability to do this freely. Of course, the only other option is to register it, and for many- this is not an option considering the price of registering the copyright in the first place; It currently costs musicians $40 per song or per collection to register their music in the Library of Congress. Also, the sheer amount and prolificity of visual artists far outweighs musicians. I can't even imagine this."

This legislation is simply abominable. I don't want to keep my art, my music, or my creativity confined. No one should if they choose to share. If this bill passes, the nightmare of getting one's work ripped off becomes a whole hell of a lot closer to reality.

Dave Wirth
The School of Feedback Guitar