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Mind Your Business: Don't Lose the Rights to Your Artistic Creations

In his month's column, Mark Simon reports on alarming new developments in his continuing campaign against the Orphan Works Act.

Mark Simon.

Others have said it couldn't happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. They were wrong!

If you don't register every photo and work of art in government-certified private databases, you are about to give anyone the legal right to infringe on your copyright.

"The Orphan Works Act of 2008" (H.R. 5889) and the "Shawn Bentley Orphan Works Act of 2008" (S.2913) were released to the House of Representatives and the Senate recently. While at first glance the law seems to be a "last resort" in a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.

An "orphan," as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but whose copyright holder can't be found. Actually, this bill makes it easy for searchers to pretend it's hard to find copyright holders!

Registries Will Remove Your Copyright Protection!

We cannot just sit back and let this Orphan Works bill pass! As it is written, if it passes we would have to register all of our creative works in all the upcoming private-sector registries (those certified by the Copyright Office) or risk orphaning all of our work. This means all past, current and future work could be legally used without your permission.

The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new software to match an image being searched with the images that are registered and, if found, will supply the searcher with the artist's name and contact information.

Having online registries to search for copyright owners is great. Using these registries as a basis for legally orphaning a work is terrible.

What makes me think the registries will be used to orphan works of art? Three reasons:

Page 2 of the Senate Orphan Bill cites "sources of copyright ownership information reasonably available to users, including private databases."

The effective date of this Bill will take effect either (a) on the date at least two private registries are available online or (b) by January 1, 2011, whichever is first. They are tying the bill to when these registries are available online.

People who want to use your work for free will only have to perform a search for you using these registries, which will be ineffective at best, to qualify your work of art as orphaned, giving them free use of your art or photo. The private registries will likely be easy and quick, just not very complete.

All someone has to do is search a couple of these registries and, if your work doesn't show as a match (and remember this software isn't perfect, so you may have registered your work and it still won't show up in the results), it may be considered orphaned and can be used for free.

Registry Entries Will Be Limited at Best

The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist I know has the time to pull out every sketch, photo or other work of art they have ever produced and register them with every upcoming electronic database. Add to that any studio/artist expenses involved, assistants and assumed registration fees, and it's even less likely much work will make its way into the registries.

Even Famous Artwork Can Be Stolen!

Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.

The Crucifixion © 1979 by artist Gary Lessord. All rights reserved.

Religious painter Gary Lessord created a painting in 1979 called The Crucifixion. According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his The Passion of the Christ.

Lessord's painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book The Many Faces of Christ, featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and, as the only work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.

Under the current copyright laws, if found guilty, Gibson and his production company are liable for the infringement.

If the new Orphan Bill had been in effect, all they would have had to do is search two of the registries and, if the image didn't show up, consider it an orphan and use the work. It wouldn't matter how popular the piece is if it's not registered in the same digital databases used in their search.

Tomcats by Mark McCandlish. © 1991. All rights reserved.

Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. Current copyright law has allowed him to sue and successfully collect large damages from the infringing companies.

"This has got to stop," says McCandlish. "It will only get worse -- much worse if the Orphan Works legislation passes."

There Will Be No Penalty for Stealing!

Under the new legislation, McCandlish would not have the same ability to sue for statutory damages. The new law will "limit remedies," thereby removing the expensive penalty for stealing your work. Sure, you will still be able to sue, but the amount will be limited. This only empowers those who want to steal our creative works!

This means the most an infringer would have to pay is what the infringer feels he should have paid in the first place! You, the artist, will no longer be entitled to, and the infringer will not be liable for, damages, costs or attorney fees. Any betting man wanting to use your art might take these odds and steal your work.

If you don't think this applies to you, think again. Have you ever taken a photo that is on the Internet? Maybe you have photos on a photo-sharing service like Flickr, Shutterfly or Snapfish.

Just imagine that one of your photos was used by someone else on their site. That happens all the time, but, if there is no commercial benefit, it's no big deal. Right? Wrong!

If a designer finds your photo on someone else's site (making it harder to find you, the true owner) and you haven't registered it in the online databases, an unsuccessful search on a certified registry will orphan your photo, allowing its use without your permission. You could end up seeing your photo in a national ad campaign, possibly for a product you don't want to be associated with.

They Can Change Your Work and Copyright It for Themselves!

The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to your work and copyright it under their own name!

Do you want to see what lewd things people can do to your work legally? You would have no choice but to watch your creations being altered and sold, potentially ruining the reputation of your work.

Proponents of this bill say they are protecting the rights of the people to make use of existing creative works if they can't find the owner. What rights? Just because you can't find me doesn't give you the right to use my work!

If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner? Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don't include that information in the first place.

Sure, we can also put digital watermarks on scanned images, but not every piece of art or photograph is only in digital form. Plus, there is an easy work-around to remove digital watermarks as well. (If you don't know it, I'm not going to tell you!)

You must make yourself heard now. This bill must not be allowed to pass!

Any single clause or amendment to a bill can cause an otherwise well-intended law to become devastating to a segment or segments of the population. According to Dan Nichols, who has worked on a number of political campaigns, it takes an average of seven bills to reverse the total impact of a single bill once it is passed. This means seven times the effort and money to reverse a bad law -- even though it is recognized as a bad law -- because there will be many different groups wanting to hold on to the parts of the law that benefit them. It is nearly impossible to completely reverse the effects of a law once it passes. This should make apathy the enemy of anyone who has something to lose through any aspect of a pending bill.

Don't Be Bullied Into Going Along with a Bad Law!

Contact your legislator:Go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone number, address, and e-mail of every U.S. Senator, U.S. Representative, Governor and State Legislator. Please be polite. Threats only work against us artists. We need to make a professional impression to be taken seriously.

Let yourself be heard. Protect your creations. Every voice counts and so does your right to control your own creations. You need to write letters now!

We only have a few days to make ourselves heard, as the Senate and House will only allow a short time for comments. Call them, send e-mails and fax letters.

If you don't prove you care about your work, the congressmen and senators who work for us won't care either. Show them you care!

Get On an Orphan Works Email List:

To be notified of the latest information on the Orphan Works bill and how to easily contact your legislators, send an e-mail to illustratorspartnership@cnymail.com and ask to be added to the Orphan Works list.

The complete House and Senate PDF versions of this bill are available at www.SellYourTvConceptNow.com/orphan.html.

Audio Interview Link

Brad Holland of the Illustrators' Partnership was interviewed, prior to the release of the 2008 Orphan Works Act, regarding the bill and what it means to us as artists. Listen and learn more about how you may lose ownership of your art and photos. This article and the recorded interview are available for anyone to use in any print medium or on any website. Please forward this information to every person and group you know so that we can work together and protect our creations and livelihoods.

Mark Simon is an award-winning animation producer/director and speaker. He speaks around the world on subjects about art, animation and TV production. His copyrighted companies may be found online at www.SellYourTvConceptNow.com and www.Storyboards-East.com. He may be reached at marksimonbooks@yahoo.com.

This article may be freely copied, re-distributed and posted, in its entirety. The opinions expressed are those of the columnist and do not necessarily reflect the opinions of AWN, Inc. and its affiliates.

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