The industry as seen by top designers.
More Details of the Orphan Works Legislation
And the harm it could do to the industry.
Brenda Pinnick, Brenda Pinnick Designs, Inc. (May 19, 2008)
(Note: Brenda Pinnick creates and licenses art, design,
and product concepts for scrapbooking and paper crafting products.
Her products are sold on QVC and in retail stores. She has worked
in-house for such notables as Hallmark Cards and for Plaid
Enterprises and has been licensing art for 3+ years. Brenda serves
on the CHA Designer Council and is on the Professional Advisory
Committee for the Art Institute of Atlanta.)
Dear Friends and Members of the Creative Community,
I urge you to examine how this legislation will, if passed,
affect the crafting/creative industry.
The nature of the products we make, that is, products which begin
with the artist, move onto manufacturers, retailers, and finally
into the hands of crafters is a bit different than some other
industries such as gift or home goods. Presumably, the end user, the
crafter, will use the products either in whole or part, to create a
"derivative work". It is common for scrapbooking and card
crafting enthusiasts (for example) to then "publish" their
creations on forums, blogs, online galleries, and more. In many, if
not most instances, the crafters will add a copyright notice,
claiming authorship as "designer." This is done in
ignorance of the current copyright laws, which state, under current
law, the right to create a derivative work is one of an artist's
Section103 (a) says a user can't copyright a derivative image
that he's infringed. Protection for a work employing preexisting
material in which copyright subsists does not extend to any part of
the work in which such material has been used unlawfully.
Under the proposed new bills (Orphan Acts of 2008 (S. 2913), and
Orphan Works Act of 2008 (H.R. 5889) since the entirety of an
infringed work can be included in a derivative use, then the
copyright of the derivative will amount to a copyright of the
original. This would be a de facto capture of new exclusive rights
by the infringer. In other words, these bills allow infringers to
make and copyright derivatives even if the copyright holder to the
original work objects.
Okay, what does this mean to manufacturers in the crafting
Most artists and companies offer an "angel" policy for
creating a limited amount of handcrafted pieces for the purpose of
selling at the PTA fund-raiser, church bazaar, etc. Many crafters
take advantage of this opportunity to share their crafting with
friends and do their community good. They feel comfortable and
justified in investing in craft supplies because their crafting has
a worthy "purpose." I applaud this with all my heart. When
I (or anyone) design a kit with many components such as stickers,
designed ribbons, papers, cards, designed buttons, word art, hand
drawn lettering, etc., each of those small pieces and parts cannot
possibly carry my copyright information on them. I also design art
for die-cutting machines, which would be impossible to carry my name
or copyright information. NOW, under current copyright protection,
even though my name isn't on each and every piece, I still have
protection. If the Orphan Works legislation passes, my art can, by
de facto, become "orphaned" and the "property"
of the end user. It allows for an infringer (crafter, competitor,
manufacturer, anyone) to create and copyright a derivative work from
the original design. Now, think about how much money a manufacturer
invests in taking product to market and what they have to lose if
their competitor, by de facto, captures the copyright to the art.
And with no identifying copyright notice attached to each little bit
and piece of art, well, it will be a "free for all,"
In the licensing industry, a guarantee of exclusivity is usually
required. This will no longer be an option. Artists won't be able to
make the guarantee nor will manufacturers be able to make it to
certain big box retailers who often require it as part of the deal.
In my wildest imagination, I cannot imagine how a designer/artist
will be able to continue offering art and design for this industry.
People who have spent all their lives and devoted their professional
expertise to this industry will be left without protection and a
livelihood. EVERYTHING will become "clip art" and it will
put the art into the hands of people who can and will, claim it as
Subsequently, no artists will be around to make NEW art; we'll
all be too busy asking, "Do you want fries with that?" And
I'm NOT joking. (refer to Creative Leisure News, last
edition, with no offense intended to anyone working, or is ABOUT to
be working, in the fast food industry)
(Note: To contact Brenda, email firstname.lastname@example.org.
Visit her blog at http://brendapinnick.typepad.com
and her website at www.brendapinnickdesigns.com.
To read another commentary on the issue, click on "The Orphan
Works Bills" in the right-hand column. To add your thoughts
email them to CLN at email@example.com.)