Creative Leisure News - Business-Wise

Mike's often irreverent, thought-provoking analysis of the industry-- with an occasional guest columnist.

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 opportunity.

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 collections.)

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 matter.

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 statutory damages.

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.

xxx