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The Lobbying Effort in Washington
Leading the charge against the Orphan Works
legislation - and an opposing point of view.
by Brenda Pinnick and Senator Patrick Leahy (June 16, 2008)
(Note: Brenda is head of Brenda Pinnick Designs and
recently traveled to Washington, D.C. with other opponents of the
bills. Here's her report.)
More than 20 artists, designers, cartoonists, medical
illustrators, and even an intellectual property attorney hit Capitol
Hill last week in an effort to have our concerns heard. We had
meetings with both parties, in both the House and the Senate. Many
of the meetings were with the Legislative Assistants and some of the
meetings included the Senator or the Representative.
We carried with us a complete packet of written and visual
examples to pass out, and the goal was to deliver a "drop"
packet to each and every office regardless of whether or not we had
an appointment. We came close to reaching this goal.
It's important to note here that the House version of the bill
differs a bit from the Senate version and it excludes
"useful" items, including textiles. This is a result of
the textile people being included in the talks early on. They were
given the opportunity to have their voice heard. Visual artists,
that is, true, working artists, have not been given this
There is an organization who is claiming to be the
"voice" of all artists and they have now endorsed the
passing of the House version. Currently, there are more than 60
groups opposing both bills and these are made up of illustrators,
fine artists, cartoonists, designers, architects, photographers,
medical illustrators, decorative painters, quilters, record industry
professionals, and others.
The list is growing every day and the most recent additions are
from overseas. There is a huge, growing concern coming from Europe
because artists will no longer feel their intellectual property will
be protected if it makes its way into the U.S.
Almost all of the meetings were positive ones, with some minds
being swayed or at least opened up to consider our points, with
promises of further examination. There were a few meetings that
resulted in complete turn-a-rounds in position. And there were a few
meetings that were not so great, mainly because they were with the
sponsors of the bills.
What was very, very helpful in illustrating our position was when
I showed examples of the many pieces and parts of a huge
scrapbooking kit. When I explained that there was no way to include
a copyright notice on every die cut, sticker, designed ribbons,
buttons, and every other bit and piece, and how in the world could I
ever "register" all 8,000 pieces individually with a
registry? (Current copyright laws enable an artist to register
The new bills do not specifically state that I MUST register each
individual piece, but rather they put in place the necessity to do
so, due to the "derivatives" clause, leaving each piece
and part in jeopardy of infringement.
When I showed an example of a scrapbook paper I had designed and
asked how I would go about describing a design made from a made-up
motif, not one person could answer. Keep in mind, PAPER IS NOT
CONSIDERED A USEFUL ARTICLE so it is not exempt from the House
version of the bill.
What will this do to the scrapbooking and rubber stamp industry?
There is currently some confusion regarding the status of the
Senate bill. It was reported to the opposition team that the bill
was "hotlined" while they were in D.C. This means it goes
from Senator to Senator via email and if no one objects, it's
automatically passed. The opposition team has been working to find a
Republican Senator to put a hold on the bill, which is what the team
was advised needed to happen this past week. As of late Friday,
there was no confirmation of either.
Some Senators have said, "Yes, the bill WAS hotlined,"
while others have not seen it via email as of yet.
The next steps include stopping the House version of the bill and
the Orphan Works Opposition Team is asking everyone to contact their
Representatives by phone. The more voices heard from, the better.
The 60 + artist's groups do NOT endorse the passage of either the
House version or the Senate version. On a final note, one
Representative, after hearing about this bill, said to me, "Why
are you calling this 'Orphan Works'? Why don't you call it what it
really is, 'ART HIGHJACKING'!"
Well said, Congressman.
(Note: To read Brenda's previous article on the subject,
click on Designing Perspectives, and then "More Details on the
Orphan Works Legislation" in the right-hand column. The
opposition group has a website, http://www.owoh.org,
and a Yahoo Group, http://groups.yahoo.com/group/owoh/?yguid=111601256.)
Response to Objections to the Orphan Works Legislation
by Senator Patrick Leahy
(Note: Senator Leahy, a Democrat from Vermont,
co-sponsored the Orphan Works bill in the U.S. Senate with Senator
Orrin Hatch, a Republican from Utah. A CLN subscriber wrote
to Senator Leahy objecting to the bill in its current form. What
follows is Senator Leahy's response.)
Thank you for contacting me about orphan works. I appreciate
hearing from you, and I am sorry to hear that we disagree on this
On April 24, 2008, Senator Hatch and I introduced the Shawn
Bentley Orphan Works Act of 2008, S. 2913. This bill would allow the
use of orphan works, but only if the users first conduct and
document a diligent search for any owners, from whom they could seek
licenses to use the works, but are unable to locate those copyright
owners. If a copyright owner later emerges, the user must pay
reasonable compensation to the owner and is shielded only from full
The Shawn Bentley Orphan Works Act does not dramatically
restructure copyright law - it simply provides for a limitation on
damages in discrete, limited circumstances in which, among other
things, the owner is not locatable. It does not provide for a
transfer of copyright ownership or rights. The legislation also does
not require artists to register their works; it merely provides
extra protection for visual works by requiring the Register of
Copyrights to certify that there exist databases of visual art that
have the capability to search images both by text and by image.
Congress must act carefully to ensure that legislation does not
harm the creators who hold copyrights and who bring so much value to
our culture and our economy. At the same time, I would like to see
the chance for social and cultural enrichment by enabling use of
these orphan works by the public. At its core, the Shawn Bentley
Orphan Works Act seeks to unite users and copyright owners, and it
seeks to ensure that copyright owners are compensated for the use of
their works. It does not create any orphans, and it does not create
a license to infringe.
Again, thank you for contacting me. Please keep in touch.