Mark Simon wrote this article about the Orphan Works Act and said it could be posted in its entirety other places.  It is published somewhere on www.AWN.com. There is more information in yesterday’s post and there will be still more tomorrow … and these three pieces are what I have new for now.

Purple Entrance, Digital © Diane Clancy

~ Diane Clancy

 
Does Congress Care About Your Creations?
Mark Simon
Artist Advocate

Mark Simon keeps trying to chip 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 Illustrator’s 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 Illustrator’s Partnership
set up (http://capwiz.com/illustratorspartnership/home/ ). That
doesn’t even count all the letters sent and calls made to
Representatives and Senator’s 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 Representative Tom
Udall, NM, 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-mails regarding
this issue. By far, 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 got copied
on over 60 responses from Congress which show a combination of
support for the Bill, opposition to the Bill 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, and 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 had a
common phrase 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 is doesn’t show 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. Non-profit 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 penalizing the thief, there is very little incentive
not to steal our work.

Senator Kay Bailey Hutchison contradicts herself in her written
response to Mrs. Matthews. In the same sentence she says “I believe
copyright protection is a foundation of innovation”, in which seems
to oppose the legislation, but then she continues 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 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.

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