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Story by
SarahSays,
Vanessa
Published on August 19, 2008 in Reviews |
Photo by Vanessa. Artist Andrea Mistretta talks through how her Mardi Gras art came to be allegedly infringed upon. |
In our regular series You be the Judge, we ask our readers to weigh in on copyright and infringement cases. In this case, we want you to role play a Congressperson!
There has been a lot of talk in the arts community concerning a potential copyright law reform titled “The Shawn Bentley Orphan Works Act of 2008.” Congress is currently considering this reform. According to the Act, an “Orphan Work” is a copyrighted work where after a reasonably diligent good faith search, the owner cannot be found, and therefore the copyrights are loosened so that others may use the work.
You can read the Bill yourself by downloading this PDF file.
In a press release, Senate Judiciary Committee Chairman Patrick Leahy said that this “legislation will help bring together potential users and owners of orphan works. But also as important, it will allow the public to view works that may remain orphaned.” According to Leahy, this bill can “preserve important parts of our personal and national heritage without giving a free license to infringe on established copyright protections.”
Many professional artists and small business owners worry that the Bill is too broad and as a result, it will have a negative impact on their livelihood. Opponents argue that the Bill will negatively affect artists’ creative control, ownership, and value of their works. Not to mention the economic impact of registering every piece of work in an effort to avoid a work becoming an orphan, artists worry that it would also put the onus on them to put in incredible amounts of time and money to simply prevent infringement on their work.
We (Etsy admin SarahSays and Vanessa) recently attended a talk at the Salmagundi Club in New York with a gathering of artists, the Small Business Association's Office of Advocacy, and a variety of organizations representing working artists (such as the School of Visual Arts, the Artist Foundation, Artists Rights Society, and the Society of Illustrators, among many more). You can view the webcast of the event here. The representatives there voiced their approval of the current way Orphan Works are handled by libraries, educational organizations and non-profits. The fears expressed at the talk revolved around the proposed changes and whether they would allow "big business" to profit from independent artists' works. The parties at the talk wanted to present information to the public (and to Congress) regarding what sort of financial impact the legislature might have: legal fees independent artists would incur to sue infringers, time and money spent digitizing and adding images to databases. It was pointed out that once artists have lost their exclusive right to sell their work, the work's value decreases triple fold, since most working artists make a living through licensing their work, rather than just selling the original.
In a New York Times article, Lawrence Lessig, Stanford Law professor and and political activist, writes that the proposed change is "unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise."
What do you think of this Bill? Share your perspective in the comments below.
| Tags | cases, copyright, Legal Info for Artists, Orphan Works Act, REVIEWS, SarahSays, You Be the Judge |
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50 comments Login to add your own!
jamieribisi
I think that this proposal is insane. It would pretty much ensure businesses the right to bully artists and control our pocketbooks.
Can you imagine how much money they stand to make off of each artist who has to register each and every work that they produce? It'll be the art world's version of big health insurance companies-- what choice would you have other than paying rising rates to protect yourself?
This is just the government's way to give their big business buddies another way to rape & pillage us. No matter how 'conspiracy theory' that sounds, it's sadly true.
shaylamaddox
I tend to agree with JamieRibisi, but I am often distrustful of giving government more control over things we as citizens are managing just fine.
I guess what I don't understand about this is why such a change is needed in the first place? Was there something wrong with how it functioned before, without this reform?
stringtheory
I recently wrote an article on this on Crafting a Green World:
http://craftingagreenworld.com/2008/0...
Crafters weighed in, as well as Diggers (and comment wars ensued). It's an odd contradiction of the P2P file sharing crackdown currently in the works. Fellow writer, Skye weighs in as well with advocacy tips here:
ScottBulgerPhoto
This is just a bad idea all around.
"preserve important parts of our personal and national heritage"
Who is Leahy trying to kid?
KathieWeise
I've written a message to Sen. Leahy and would encourage all those who don't want our rights infringed upon any more than they already are to write also.
sewbettie
NestaHome
I definitely don't want my work on an Dos Equis ad!!! That beer sucks!
:)
Spiderbite
If it's ok to take artwork and use it, if you "can't" find who owns the rights to it, than I'm gonna have the same policy for cars and stereo equipment.
"Well officer, the car was just sitting there in the street and it didn't have anybody's name written on it, so I thought it was up for grabs. I'll gladly give it back if the person can find me and the car, wherever we have wandered off to in the world, but they have to find me using it amongst the millions of cars out there."
If you can't find the copyright holder than go find something else that you can find and buy the rights to the work. It's really simple. If it isn't yours, and you don't know whose it is, you don't just take it and use it.
Spiderbite
With this bill I have to actually find the offending copyright infringement and instead of being able to sue them over it, they are merely required to pay me "market value". So even if they're caught they have to pay LESS than I would probably charge them, so they're still getting the illustration for LESS then they would have paid if they had bought it from me directly.
Essentially there's no punishment for people who are using artist's images. It seems like good business sense to infringe on artist's copyrights with this bill because you will end up SAVING money. you only have to pay "market value". Who's to say what my artwork is worth but me?
Where as most people would sue and get a lot of money for these infringements, which would be incentive NOT to use someone's work with out asking.
Back to the car analogy. Ok I steal your BRAND NEW car that you just bought off the lot the about 2 months ago. Well, since it is technically pre-owned now. I mean you had it for a day and they say your car drastically drops in value the moment you drive off the lot.
So, I give you market value for the car which is less than you paid for it initially, but that's all ok because there is a bill saying I can do this.
Spiderbite
So alright, we get paid even if it is lower than what we would originally charge for our illustrative work. At least we get paid, right?
Well, what if the organization, company, person is not someone we want using our work.
I mean I'm not going to have my work represent a company I don't respect.
What if a band that writes songs about raping women uses my image for their album art? Now they can do it without asking so long as they pay me "fair market value" IF they get caught.
I should have COMPLETE control over who uses my work. it's not just about money. It's about integrity as well.
Spiderbite
What if a Neo-Nazi group decides my work suits their needs? Well, maybe not my work it's too cute, but who knows!
They're allowed to use it, if they "can't reasonably find who did the work" (what the hell does that mean anyway? What reasonable, it's entirely too subjective) and pay me the small royalty fee of "fair market value" that I have to go to court to fight and try to get?
They're defaming my character by using it in the first place and I should be able to sue to ensure that they don't do it again.
Spiderbite
And it's already hard to catch people stealing your art. They could be anywhere any time doing it. I doubt I'd be aware if some band from a genre I didn't like started using my work for their art.
SO now I can't even get justice when I DO find them? come on!
Spiderbite
I have worked in commercial illustration and sometimes THERE IS NO indication it is my work and when I do get credit it is EASY to remove any indication that it is my work.
It's the way the illustration world is and I accept that. But with this new bill it frightens me badly. It leaves everyone who makes art totally exposed to dishonest thieves.
Especially with having my work on the internet, which MOST artists do. So I have my painting up on my site with full credit and everything.
Someone sees it and uses it without my permission and without credit given, on their blog. So then someone else sees it and decides it would be cool to use for some publication they're making. They query the blogger who can't remember where they got it. they google search using keywords for the work and can't find it, they check the copyright database and find it because I don't get a registered copyright on every scrap of illustration I do as it is too costly.
So they take it and use because they can't find me. Is that fair?
I reiterate:
If you can't find the copyright holder than go find another piece of work that you CAN find the copyright holder of and buy the rights to the work. It's really simple. If it isn't yours, and you don't know whose it is, you don't just take it and use it.
AND YOU DON'T MAKE A BILL SAYING IT'S LEGAL TO DO THIS.
Spiderbite
I meant: and CAN'T find it because I don't get a registered copyright on every scrap of illustration I do as it is too costly.
In my opinion the government wants us to have to pay for more registered copyrights, and strip us of our inherent copyright. For what? More money.
As illustrators the only money we make is on the RIGHTS to reproduce our work. This bill STRIPS us of those rights. How are we to make money on our work?
Art2ArtColorado
I am against this and have already written my representatives.
It's another move by our illustrious Big Brother that favors Goliath over David.
I see it as a stripping of artistic rights rather than a protection not to mention causing undue hardships, both financial and logistical, to a segment of the population that probably needs it the least.
Anybody can say something is abandoned when it not.
Anybody can say they attempted to contact, when in fact they have not.
These guys in suits need to get out of Washington and live a month on the streets with the average JOE so they can get back to reality!
Spiderbite
Write to your state representatives about the Orphan Works act
http://capwiz.com/illustratorspartner...
Brad Holland (AMAZING conceptual illustrator in case you were wondering) and Cynthia Turner propose a logical solution:
WallCandy
This bill would financially drive artists into the ground. The current copyright system works in the benefit of the artist (I am Canadian and less familiar with the American system). An orphan works bill would transfer copyright to anyone. The only people who should ever have the rights to my work are my children and their children. (and their children's children).
Artists will be an endangered species if people cannot hold onto rights and make a profit off their own work.
Mattson
As written, these proposed bills are most certainly NOT in the creators' best interests to protect and make a living from their own art; and are opposed by scores of creative groups.
It's been forum'ed here (among other threads), in efforts to get creators to write to their reps in opposition:
http://www.etsy.com/forums_thread.php...
In my tiny way, I wrote about it here:
http://mattsonstudio.blogspot.com/200...
And here's a recent list of groups against the new bills:
icyplum
Hello to every creator out there! You make life better! Thank you!
And thank you to the Storque and to Etsy for exploring the issue!
My opinion? I encourage artists to write and call their Congressmen and Senators. Visit your reps' offices, send snail mail, send your friends and family the link to this Etsy storque piece.
Think of the big picture and the future-- not just whether you personally will be financially affected in this moment. Think of the millions of artists out there, for generations to come. Think of the door this bill is opening for abuse of artists' rights. We should be able to use our artworks in the way we choose. We should have the right to our own intellectual property and no one else should make money off of of our creations without our express consent. The Orphan Art Works bills are a terrible idea. They should be laid to rest, NOT made into law. You could literally be sued, or be breaking the law, for using your own artwork! That's how it could be under the proposed system.
FredParkerPottery
This is yet another manifestation of public opinion that seems to believe art is unnecessary, of little value and "anyone can do it." Artists deserve full protection from infringement -- even if they opt to live in a cave isolated from all of civilization. Burden should be on the user/infringer and NOT the artist and the legal scales should tip toward the artist regardless where he or she migh choose to hide.
It is a good example of politicians' lack of understanding of the artist's delimma/condition.
squunkin
I can understand concern about how such a bill is worded, certainly, but I cannot fathom the extreme reaction so many seem to have to the idea of an orphan works bill itself. There are many books, movies, etc out there that are in limbo and disappearing because they may or may not be in the public domain (or may be technically under copyright if only anyone knew or cared who now has the copyright -- hence the "orphan"), and such a bill would allow people trying to preserve such works to do so without the fear of losing everything by making a mistake.
http://www.ala.org/ala/washoff/woissu...
http://www.publicknowledge.org/issues/ow
The problem about orphan works is not about businesses trying to steal your work -- it's about preserving the public domain, our heritage and history. So, sure, have concerns over how exactly it's worded, but I think it's a direction we need the law to go before too many works have been lost forever.
icyplum
This bill "orphans" ALL work. NOT just the ones which are important to national heritage education/whatever angle they are claiming the bill is for.
Museums, libraries, and colleges will not allow works to vanish forever...they can work with the government on those situations individually. The authors of this bill are the ones fear mongering and not caring about the masses. We artists are not the ones trying to scare people. We are just standing up to have the same rights as other industries.
Also, some artists wish for certain works of theirs to be private. If this law passes, we are going to be forced to share every piece we create with the public... otherwise our rights to the work won't exist. We have to display our lifetime catalog of work to these agencies, so that they can be viewed by the entire world. How can people claim that art should belong to everyone, while other things don't? It's just as Spiderbite and FredParkerPottery said... art should not be treated differently than a car or anything else of value.
twosilverstars
Yep, bad idea all around. Copyright infringement is rampant, and if this bill is passed the problem will only get worse for a myriad of reasons. Many of which are not even addressed by the bill's proponents. Why complicate a matter that is already bad enough!
PearlZenith
Hideously terrible idea. It takes me enough time and money to create my work; I certainly don't have the resources to register everything in a private 'industry standard' database. And the software proposed to find such registered work isn't even reliable at searching. Not to mention this new version is a violation of the Geneva conventions in that, for effective protection, one must register, and I already mentioned the holes in that plan.
Why do I need a new bill when I'm quite pleased with copyright law as it currently stands?
moonstr
this makes me sad
i put my money back in to my art
its my passion. i don't get it
why does this have to happen or, are people just out to be mean...
really?
who's to say that shouldn't just go
to art, how about jewelry?
or the many ways to make shit?
literally
come on!
im going to write some people..
twilightrainbow
Spiderbite: Please stop using the car stealing analogy. It doesn't work. Copywrite infringement is not theft, it is making a copy, and it is *especially* not theft of a physical object. There is a tremendous difference, so your statement regarding it is irrelevant.
This bill is tremendously bad, and the person who wrote it should be publicly shunned.
fortheloveofflowers
l am new to etsy. l haven't even posted anything for sale yet. l am still trying to figure out how to set up my shop. but l have been reading alot on etsy about copyrights, and l have been wondering whether l should register my vases. but from what l have read from all of you, l couldn't just register my manner of creating my vases, l would have to register every one l made. l don't think this law will help out anyone, but the people who want something for nothing. it seems like most of our laws benefit the rich and the takers and the rest of us are expected to hand it over and say thanks!
JessicaDoyle
There is a very good write-up on Wikipedia discussing Orphan Works from the Canadian, American and European standpoint.
NOSSUBGALLERY
twilight - copyright infringement IS theft - it is the illegal use of an artist's work to generate a benefit or to generate profit for the user without compensating the artist.
squunkin
icyplum: It doesn't orphan all works (and if you feel it does, work to have the wording improved, don't fight the entire concept). And there are many works being lost regardless of the work being done by librarians and others; and it's not about just works you deem "important to national heritage education" -- it's about works from the 1920s that big businesses don't give a damn about, but may technically still be under copyright, songs and movies that businesses cannot make enough money to care from anymore and so they're willing to let them disappear, it's about computer software that we're losing the technology to use but aren't supposed to copy into other forms...
There's a difference between eliminating copyright and protecting those who put reasonable effort into finding copyright owners but are unable to do so. (For some of these works, nobody knows who, if anyone, owns the copyright. What do we do in those cases?)
Art2ArtColorado
*good read, Jessica, on the Wiki.
I appreciate that you posted this and will have to browse through the numerous links there.
I am sure glad there are high level people in the art world following this proposed legislation and I place my trust in their assessment and advice.
squunkin
Orphan works is not about taking your copyright away. It's about saying you can't lose everything if you made an honest mistake and used something you thought, after putting in good faith effort, was free to use anyway. If someone uses something against your permission, you can still stop them, even if they did put in the good faith effort. Even without this you still have to put in some effort to protect yourself anyway.
icyplum
I'm sure you have good intentions with what you're saying Squunkin. The video explains it better than I do:
http://videos.cmitnyc.com/asip.html
I'm not sure if you watched it. If you do, perhaps you'll understand what I'm saying. I have worked with many, many museums professionally. There are ways to handle the types of things you're talking about. This legislation, if it comes to pass at all, should be restricted to helping museums/archives/colleges on a case by case basis. The way the legislation is currently written, it does indeed take away the copyright for trillions of works of art, so I'm not sure why you're saying this bill is not about taking away copyright. That is what it effectively does. It even violates international standards and treaties. Please be careful of suggesting that artists are wrong on their stance here, because when people see comments like that, it is doing a disservice to hundreds of thousands of creators everywhere.
"Orphan" works is a misnomer for this bill everybody. The issue some people such as Squunkin are talking about is different issue than what most artists are concerned about. I encourage everyone to watch the video of the roundtable in New York.
Spiderbite
Oh SNAP, I done got told. Twilightrainbow, I gotcha a car is a physical object and an idea is intangible. An idea/image can be copied leaving the original intact. I'm reworking the analogy for a stolen credit card or something instead of a car. I was trying to show non-artist people something that they could understand, since it appears that most people don't understand how you can steal something, unless it is a physical object.
My goal was to show that stealing a car is the same as stealing my exclusive rights to an image, not the image itself. Under this bill I can't really sell exclusive rights to a client. How can I if anybody can just use the image so long as they later pay me fair market value?
So, it's taking a HUGE chunk of income away from illustrators. A right may be intangible, but the money it makes an artist is not, and unfortunately it's a large part of every illustrator/designers income.
I'll rework the analogy and get back to you.
So, in essence it's taking a huge
TerraScents
This is absolutely and utterly ridiculous. So for a unique original ACEO I sell for around $6 I'd have to pay HOW MUCH to have it registered?
Sheesh... I don't think I can afford to be creative anymore. Think I'll keep my money and do something else like become a crack whore.
For most of us- ART IS THERAPY!
We can't afford to give it away. But we also want to be protected against people who would use our ideas as their own.
Spiderbite
squnkin, unless the bill is changed it should be scrapped. Check out Brad Holland's solution for reworking the bill.
http://www.illustratorspartnership.or...
I think that nobody should use ANYTHING, if they are not sure who owns it. If you can't find the copyright holder than go find something else that you can find and buy the rights to the work. It's really simple. If it isn't yours, and you don't know whose it is, you don't just take it and use it.
If you can't afford to pay to use an image, than just make your own. If that's not an option, than maybe you shouldn't be doing whatever you're doing in the first place.
DearDodo
There must be so many 'orphans' out there in the internet.... the creator perfectly untraceable....
I guess this bill originally was supposed to protect the artists and creators as good as possible. With this change it wouldn't seem to be a bill for 'protection' anymore, not for the artists though.
Mattson
One has to wonder why this bill is even being considered, unless certain parties are pushing its passage, to profit off of others intellectual property. Because the copyright laws ALREADY WORK to protect our stuff, immediately after we make it.
This new proposal breaks an already swell law--why are we wasting our government's time and our taxpayer money on this?
Besides, if you can't find somebody's name on something, do you think, "Well, I guess I'll use it as my own."? If it exists, please don't steal it.
NecessaryJewelry
I am so glad Etsy is taking steps in this direction :) trying to raise awareness!
There are 2 bills presented for vote right now and the original idea was to allow libraries, museums, schools etc to use old materials, that have no comercial value, yet represent history and our heritage - Well, noone is against that :)
The BIG QUESTION is why this bill lumps all of the creative art work together and allows it for use including commercial companies, corporations and for means of gaining more profit.
The way both of the bills are worded right now will harm every artist out there and expose their work for use.
If the idea is solely to allow old or abandond copyrights to be used then it should be worded more carefully and more specifically.
Right now we don't have to do anything and our work is protected automatically upon creation.
The orphan work Bill reverses this protection and requires you as an artist to register every single piece of your art, otherwise it's considered Orphan.
Who has the the time and money to do that ? Well, think about it ...
Icyplum, you posted a good info and the videos, thank you
I already e-mailed my congressmen and representatives asking them to vote no on both of these bill.
KAHOONICA
What a nightmare...
Spiderbite, I think your analogy was wonderful. It made it clear to people who don't understand how an idea can stolen. And it also showed how hard the thief can make it to be found.
NecessaryJewelry
Canada passed a simillar law for the Orphan works and it seams to be working just fine, it's worded the way, it doesn't expose the art work of artists and it allows the use of TRUE Orphan works to be used for the benefit of everybody.
Why not at least look into this law and see how they did it..? instead of rushing into accepting this brutal reap off
NecessaryJewelry
Icyplum says "We should be able to use our artworks in the way we choose. We should have the right to our own intellectual property and no one else should make money off of of our creations without our express consent."
I LOVE how you said this. That's what it's all about.
We have to stand up and protect our rights. It's good time to call the representatives and congressmans to tell them how you feel about this law, even if you already did....
thewhimsytrove
Spiderbite, as usual, totally in agreement with you. Icyplum, as usual, totally in agreement with you.
Like someone in some non-orphaned work said a long time ago, if you want to find the truth, follow the money. And if something like this gets passed, well, that'll be so much easier. Not easy to actually GET the money for our own creations, but to see who else does.
NecessaryJewelry
thewhimsytrove says:
Not easy to actually GET the money for our own creations, but to see who else does.
Well said ..... totally agree.
That's why I just e-mailed my congresswoman and representatives again to make sure they don't forget about the issue
gigilaroux
There is already enough counterfeiting going on between big business (Sorry Target/Walmart/Urban/Anthropologie) ripping off smaller independent artists that to have this law go into effect would give big business free range to claim an item is free for the taking and they couldn't find the creator.It causes way to many cost s for the artists. First they take art out of the schools and now they make it impossible for the artists that are left to keep what they create as their own. What kind of Philistine society are we creating by causing this much trouble for artists? PS If you think all those big designers pay employees for their ideas, forget it, their stylists go onto sites like etsy and other style blogs to get ideas.
oddvenus
I agree whole-heartedly with what Spiderbite has said, and with gigilaroux (especially the PS!!).
I worked many years for clothing design/manufacturing companies (some VERY big-name) that were constantly trying to "get creative" with HOW they could get away with using images that they did not own & did not pay an artist to create. Most of the time it was an issue of the company not WANTING to pay for the right to use it, not an issue of them being ABLE to pay.
Most artists (like myself) are just trying to pay the bills & feed my kids. And like most artists, my heart & soul is laid bare in the works that I do - I want to have a say in how that work is used.
NecessaryJewelry
Totally agree with you oddvenus....
Now think about, if this new law passes, do they really need to "get creative" anymore or they just can take it and make it and guess what.... they did a "reasonable" effort trying to find an artist and now they can pay what ever they think is "fair" ....to the artist.
This law is about ripping of a small men, just like it's been with others.
We do have a chance to stand up for ourselves and let our reps and senators know and they do listen, there are so many examples here showing that.
PainkillerStudios
I'm totally with Spiderbite on this one.
AGAIN again again, this is another example of Big Business trying to eradicate the biggest threat to it's existence. If everyone bought handmade not only would we be self-sustainable, but we'd be *happy*.
Big Business loathes this. As I'm sure everyone is aware, the government is not interested in fairness. It's interested in power.
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