A Message from the President
General September 9th. 2008, 7:40amDear Guild Members and Colleagues,
This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law.
But that’s not the reality. The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.
Orphan Works will not go away, because too many stakeholders are behind it. Delaying its passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version. By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues. For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle over Orphan Works.
The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get. Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper,
gift wrap, shower curtains, etc., from being covered under the legislation.
The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work. The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.
I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.
Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last. We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.
Want more? Visit our blog, www.orphanworksnews.com; or dial (712) 432-1284, enter access code 953763#, and listen to the recording of the May 5, 2008 conference call with our lobbyist, Megan Gray; or visit the ASMP web site.
Till next time.
John P. Schmelzer
Guild President
September 10th, 2008 at 2:06 am
Note: Please use this one, if any. There’s no sense sending traffic to my personal site when the info needed is on defendyourart.com Thank you.
I think the group that will be most devastated by the Orphan Works bill will be the new parents and young families that use the web to share their personal photos with relatives across the country.
There are at least two generations of parents in this country that just assume their personal photos have always been and will always be safe. They have no idea that their photos are safe because of the protections afforded by passive copyright (that’s your right to control your images from the moment of creation regardless of registration). They’ve never EVER registered their photos - they own them right? Why should they register? With the Orphan Works Act threatening to do away with passive copyright a good number of parents may be shocked awake by the use of their child’s photo in the next public awareness campaign. And it wont be pretty! Only 19 states have formal privacy laws but they are worded specifically to protect against the unauthorized commercial use of your images and or likeness. It’s the same with the Lanham Act. There’s nothing on the law books to protect against the unauthorized non-profit use of your images or likeness.
The Orphan Works Act defines an orphan as an image without ownership info readily attached whose creator cannot be found be searching the Copyright office or one a the image databases they are dreaming out loud about. This describes every personal photo on the web.
September 29th, 2008 at 9:00 am
I’m confused, does this mean if I put a photo on a photo share such a Flickr and put it BEHIND a fire wall, can anyone use this photo?
September 30th, 2008 at 11:35 pm
Nancy, if you’re surfing the web from behind a firewall that makes your machine less vulnerable. However once you upload your photos to Flickr they are on Flickr’s servers. Also just by doing so, you are granting Flickr a world-wide, non-exclusive, perpetual license to use, reproduce, distribute and modify your photos.
October 8th, 2008 at 11:09 am
AN OPEN LETTER TO THE GRAPHIC ARTIST GUILD
Graphic Artist Guild President
October 8, 2008
Dear Mr. Schmelzer,
It has been remarkable to watch the Graphic Artist Guild steadily support and push a copyright bill that will devastate artists around the world, and now read that you disparage artists that fight to prevent the loss of exclusive rights and irreparable harm this law will cause. Now, the Graphic Artist Guild has earned the shameful distinction of being publicly praised as “enlightened’ by Gigi Sohn of Public Knowledge, the Washington D.C. public policy maker and Orphan Works lobbyist that is committed to a 6 point plan to dismantle creator rights.
On October 6, 2008 Gigi Sohn wrote:
“At the same time, the more enlightened of those artists saw that the world around them was changing and that it was perhaps time to take matters into their own hands to ensure that their works wouldn’t become orphaned.
Here’s what the President of the Graphic Artists’ Guild had to say on that point:
‘I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.
See Fullpost: http://www.publicknowledge.org/node/1783)
Mr. Schmelzer, I have been a sole proprietor, small business entity since 1979. I am one who has diligently registered my copyrights and spent thousands of dollars and hours over the years doing so. I already protect and manage my copyrights, responsibly negotiate contracts, uphold best business practices and understand the market.
My name is Andrea Mistretta. As a licensor of my art, the clients I serve have the security of knowing they are protected through the indemnity clauses in my contracts. My visual example in the Small Business Administration’s Economic Impact Study of Orphan Works prepared in September of 2008 is an example how my working art was ”ORPHANED” by a “USER” and sold to one of the largest image banks in the world and sold again for a fraction of its value to an agency, then sold again to my client turning me into my own competitor while all those in the chain of infringements” copyrighted” my artwork, made money while I the originating artist received no compensation. My attorney knew he had the support of my certification of copyright to work toward justice and settlement on my behalf. Without copyright he could not have enforced my rights, and I would be out of business. There would be one less independent original thinker and artist in this country.
Under the Orphan Works law that the Graphic Artist Guild and Public Knowledge support, even with my registered copyright I would not have the power to fairly negotiate with the giant corporate infringer who cynically stole my rights. I would not be able to stop the continuing infringement. I would not be able to enforce the exclusive rights I had contractually guaranteed to my client. I would have been denied all legal fees, court costs, and damages to enforce my copyright.
Does the Graphic Artist Guild really believe this law will not “have a dramatic influence on how we do business?”
If this is the new business model Gigi Sohn refers to, there will only be users, and no artist originators. My example is not an anomaly but a harbinger of what is to come if “Orphan Works” should pass.
I believed that the U.S. Copyright Office has been the registry institution living artist generations have paid into to register their works. U.S. Copyright law provided artists the necessary protection of common law copyright law as well as statutory copyright for registered work. Now this institution has turned it back on creators.
I believe there is a place for true Orphan Works in a well defined bill. This Orphan Works bill is nothing more than a license for “USERS” to take art at will.
To change copyright law to the Orphan Works language prior to this writing, is to destroy a business model and bastion of creative thinkers to produce fresh new works that support a delicate “eco-system” – the economy system that starts with the small businesses that support the larger business in this country and abroad.
Sincerely,
Andrea Mistretta
http://www.andreamistretta.com
October 17th, 2008 at 7:59 pm
Dear Ms. Mistretta:
Thank you for your post at Orphan Works News. Your letter tells a compelling story.
Andrea, there’s no doubt that you did all the right things and got taken advantage of anyway. As a long-term commercial artist myself, I understand what that feels like.
My role as the president of the Graphic Artists Guild is not an easy one, and as I’ve said before, I truly wish Orphan Works never came into existence. The first version of the bill three years ago was much worse than the one we have now, but as we consulted with attorneys, lobbyists, other creative group representatives and lawmakers, something became very clear to us – there is almost no chance Orphan Works legislation will be stopped in its entirety.
We were simply outnumbered by better-funded interest groups that support it. This was the reality for the first bill, and it’s the reality for the current iteration.
As Guild president, I had to quickly face the reality that Orphan Works will happen sooner or later. It might have been very dramatic to shout or angrily shake my fist in a show of political theatre, but I have a heavy responsibility that I take very seriously. I didn’t have the luxury of being an angry artistic man, because I saw the landscape for what it was and continues to be. I had to get the best deal possible for the industry I’ve dedicated my entire life to and that I love. I assure you I would have been far more popular and slept many more nights in the past three years if I had chosen to simply stage the periodic public temper tantrum, but I had too much real work to do for that.
My only option was to see to it that the bill contained as many protections and caveats as I could manage to get in there for my fellow artists. We hired an intellectual property attorney as our lobbyist and attended more meetings and teleconferences than I can count with decision-influencers and lawmakers at all levels.
The Guild and its lobbyist pressed for a dramatic scaling back of the legislation to archival uses, or to certain non-profit and non-commercial uses, but those ideas got no traction despite our intense efforts – in fact, they were rejected out of hand.
Next, we turned to pressing for less massive changes. We pressed for a Notice of Use clause; we pressed for a useful articles clause; we pressed for a light archive to be held at the Copyright Office and many other provisions. Some of these efforts were rewarded and others were not, but the Guild was in that fight every single day. More importantly, we were respected in our fight and listened to, especially by members of the House subcommittee chaired by Representative Berman.
We acknowledge these compromises are not perfect. But after 40 years of negotiating experience, we believe this is about as good a version as we’re going to get, and delaying it further is not to artists’ benefit. It’s entirely possible that a worse version of the bill could be passed in the future that would do more damage to the industry because neither of the legislators or the Copyright Office are willing to rewrite a kinder bill.
Let’s be very clear – the Guild does not like Orphan Works legislation, and we’re certainly not pushing for it. That said, when the end game became apparent, we had a choice between atrocious legislation and slightly less atrocious legislation. We made the best choice for artists, and asked them to support the House version of the bill, H.R. 5889. If that choice hadn’t been made, the Senate bill would surely have been enacted into law last month.
I’d also like to make clear that the Guild adamantly opposes the Senate version of the bill, S. 2913, specifically because it lacks the Notice of Use clause.
We have no interest in pointing fingers or fragmenting the industry based on unsubstantiated accusations or rumors, because that only reduces artists’ collective influence and strength. The organization I preside over owes its existence to a strong and vital graphic arts industry, so the idea that I would do anything to deliberately injure our business fails to even qualify as being valid.
The Guild will continue to fight for artists every day in every way possible by being part of the process.
With Warm Regards,
John P. Schmelzer