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Mind Your Business: Does Congress Care About Your Creations?

In this month's column, Mark Simon keeps trying to chip away at the Orphan Works Act.

Mark Simon chips away at the Orphan Works Act.

When I found out about the Orphan Works Act, I was astounded that anyone in Congress would consider legislation that could so obviously be used against artists and their original creations.

I started helping the Illustrators' Partnership in getting artists to write letters to Congress asking senators and representatives to oppose the bill. (You have written a few yourself, right? Every voice counts!) So far artists have sent over 99,000 letters opposing the bill through the system the Illustrators' Partnership set up (http://capwiz.com/illustratorspartnership/home/). That doesn't even count all the letters sent and calls made to representatives and senators directly.

Your Voices Are Being Heard!

At least they are being heard by some people on the Hill. However, I'm not quite sure what some of our congressmen are listening to. When artist Marty Kleva called the office of his New Mexico representative, Tom Udall, Kleva was told, "This is a very popular bill."

Really? Popular? Have you seen the outrage in the online artist communities? Has Udall read any of the tens of thousands of letters sent to Congress opposing this bill?

Congressman Steve Kagen stated in his response to Kathy Glasnap, "This bill has come under considerable scrutiny and criticism from people in the arts community." This statement completely contradicts that of Udall. At least Kagen is listening.

As you may imagine, I have gotten a huge amount of e-mail regarding this issue. Most artists understand the problems inherent in this legislation and they oppose the bill. Your letters are working and legislators are starting to listen.

At the end of May I asked a number of artists on my Orphan Works E-Mail List to forward the responses they have received from their representatives and senators regarding orphan works. I was copied on over 60 responses, which show a combination of support for the bill, opposition to it and a complete lack of understanding of the issue.

Let's talk about specifics in these responses from our government officials who are supposed to be supporting our best interests.

Some members of Congress do support our position that the Orphan Works Act is bad for the creative community. I have seen letters of support from the following congressmen. Let's give them their fair due and please let them know that you appreciate their continued support in opposing the bill:

Ron Paul (extremely strong opposition to the Orphan Works Act)

Sam Farr

John Olver

Diane Feinstein

Tom Feeney

Diane DeGette

Barbara Mikulski

Florida representative Tom Feeney, co-chairman of the Intellectual Property Caucus, says about the bill, "I do have several concerns. This bill provides for a potential haven for those who are seeking to use copyrighted works but are unwilling to undertake a thorough search for the copyright owners." This is also one of my main concerns and I'm glad Feeney agrees.

Many of the responses from our senators and representatives used similar language regarding a limitation in civil action remedies if an infringer "documented a reasonably diligent search in good faith."

This phrase, or a portion of it, was included in responses from Tom Feeney, Jack Reed, Vernon Ehlers, Sherrod Brown, David Wu, Lynn Westmoreland, John Hall, Henry Waxman, Saxby Chambliss, Susan Collins, Mel Martinez, Olympia Snowe and Ric Keller.

It's rather easy to understand how someone could read that phrase and think that a reasonably diligent search for a copyright holder could be a good thing for artists. One problem: the proposed law does not encourage a reasonably diligent search.

In fact the legislation does the opposite. It makes it easy for someone to do a quick search on a registry and then call a work of art an orphan if it doesn't appear in the registry results. No other searching would need to be done to orphan a work. That's not a diligent search. It's lazy!

I've searched for artists to get the rights to use their work in my books. I know what it can take to find someone and get their permission. Sometimes you can't find them. You know what I do? I don't use the work without their permission! My inability to find someone doesn't give me the right to infringe on their work.

Having a searchable registry to help track down artists is a good idea.

Using any registry as a basis to orphan our creative works is a terrible idea!

The Orphan Works Act is Not About Grandma's Wedding Photos

Some supporters of the Orphan Works Act, such as Senator Ben Cardin, use the argument that this legislation will help grandma restore her wedding photos if she can't find the original photographer. Grandma's photos are not what this bill is about.

As artists we are mostly concerned with unauthorized commercial use of our works. Nonprofit use of orphaned works is already protected in our current copyright laws.

Senator Bob Corker states in his letter to artist Tony Beazley, "I believe that it is important for people to have access to resources and materials without the unnecessary threat of a lawsuit." I disagree. The threat of a lawsuit is necessary to protect our work from unauthorized use.

In fact, according to Florida senator Mel Martinez, "The bill specifies that monetary relief may not be made for damages, costs and attorney's fees." In no way is this good for artists.

Senator Saxby Chambliss, in his letter to artist Brian Laframboise, says, "Under this legislation, owners of works would be able to receive compensation for the use of their infringed work." This is a misleading statement. The legislation actually severely limits our potential compensation from infringers, to the point where it may not be practical to go after infringers at all.

When a law limits the penalty for theft of our work to less than the expense of taking the thief to court, there is very little incentive not to steal our work.

Senator Kay Bailey Hutchison contradicts herself in her written response to Roan Matthews. In the same sentence she says "I believe copyright protection is a foundation of innovation," which seems to oppose the legislation; but then she goes on to say "copyright law should work to ultimately protect the best interests of consumers." Copyright law is not about protecting consumers, it's about protecting the rights of creators!

Don't let Congress orphan your work! Write letters and call NOW!

Take two minutes and write Congress. Go to http://capwiz.com/illustratorspartnership/home/.

Get on an Orphan Works E-mail ListTo be notified of the latest information on the Orphan Works bill and how to easily contact your legislators, send an e-mail to ipa@twncy.rr.com and ask to be added to the Orphan Works list.

Read the complete house and senate PDF versions of this bill at www.SellYourTvConceptNow.com/orphan.html.

More Orphan Works Info

Go online to http://www.SellYourTvConceptNow.com/orphan.html to learn more about how you may lose ownership of all your art and photos. Please forward this information to every person and group you know so we can work together to protect our creations and livelihoods.

Facial Expressions Babies to Teens and the E-Book Companion, Volume 3.

Mark Simon is an award-winning animation producer/director and speaker. Mark has recently released two new editions of his popular Facial Expressions Babies to Teens and the E-Book Companion, Volume 3. He may be reached at marksimonbooks@yahoo.com.

The opinions expressed in this article reflect those of the columnist and do not necessarily reflect the opinions of AWN, Inc. and its affiliates.

This article may be copied, re-distributed and posted, in part or in whole.

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