by Carolyn Edlund
There is recent news out about copyright infringement, and none of it is good. But, the upside is that there is something you can do about it. You will need to take action now.
First, and most grievous, is proposed legislation being sent to the U.S. Congress which would change the Copyright Act, and everything you thought you knew about owning the rights to your own art. This legislation wreaks havoc for artists of all types who depend on the right to own and hold their copyrights, and it benefits infringers. Suing for infringement would become almost impossible, both financially and logistically.
Artist Will Terry has posted a really informational (and frankly, scary) interview on YouTube with illustrator Brad Holland, who is an expert on the history of copyright laws and details of this latest proposed law. The interview is long, clocking in at over an hour, but well worth viewing. Here’s the link.
Or, for a quicker read about this crucial issue, visit Brad Holland’s blog and read the post here.
I’ve listed below a quote from Holland’s article with highlights of this troubling new proposed law:
Here are the basic facts:
“The Next Great Copyright Act” would replace all existing copyright law.
It would void our Constitutional right to the exclusive control of our work.
It would “privilege” the public’s right to use our work.
It would “pressure” you to register your life’s work with commercial registries.
It would “orphan” unregistered work.
It would make orphaned work available for commercial infringement by “good faith” infringers.
It would allow others to alter your work and copyright those “derivative works” in their own names.
It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.
What can be done to stop this? Take action now by sending an email to the U.S. Copyright Office. Here is the link to do that, and here are sample letters from other artists who have written to them.
This is very time-sensitive! Please note that you must submit your message to the U.S. Copyright Office by July 23, 2015 in order to be heard. Consider writing an email now, and spread the word to everyone you know to get them involved in the effort to take down this disastrous legislation that will hurt every artist.
UPDATE: This deadline has been extended! Below please read an excerpt from the notice from the U.S. Copyright Office. Click this link to read the entire message.
LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2015-01]
Extension of Reply Comment Period: Copyright Protection for
Certain Visual Works
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Extension of reply comment period.
———————————————————————–
SUMMARY: The Copyright Office is extending the period to submit public
reply comments regarding its April 24, 2015 Notice of Inquiry
requesting comments on how certain visual works, particularly
photographs, graphic artworks, and illustrations, are monetized,
enforced, and registered under the Copyright Act.
DATE: Reply comments are due October 1, 2015.
Many thanks to Cherish Flieder and Joan Beiriger, licensed artists and leaders in their industry who have been working hard to bring everyone’s attention to the matter. I’m happy to help spread the news.
More on the infringement front..
This photo was used without permission and listed on Wallpart.com. Photography by Chris Thombs.
A petition has been circulated by Change.org to shut down Wallpart.com, which has been stealing photos of artists’ work without their knowledge or consent, and profiting by selling posters of those images to the public.
Photographer Chris Thombs is fighting back on social media in an attempt to stop this abuse. His photo (above) makes a clear statement. Find the petition here. The comment section of the petition alone is rife with complaints from artists who have been infringed and want to fight this abuse. I was happy to sign it, and you might want to do so as well.
Please share this post with friends and your following to encourage others to fight copyright infringement and the harm it causes to artists.
I have actually taken all but one piece of art off my website. Work from that site has been stolen and with hundreds of hits from the same place and no sales I am sure there is more theft than I have located. Theft is being promoted by our government if there is legislation to kill the sales of art on the web. Where is our government when we need them? How can someone start a business when they are constantly dealing with theft?
Thanks for your comment, SJ. I think your frustration is shared by many other artists. For years, people have been alarmed by the potential of infringement, horrified when it happens, and devastated when they feel they have no power to stop this kind of theft.
Oh, this is awful news. Thanks for posting it with such clarity, Carolyn. I will pass it on.
I don’t think that this means that we should bury our heads in the sand and go dark on the internet. Working artists need to show their work if they are going to sell it and our history has always been a partnership between what we do and the community outside of us. I think that we can still be out there, sharing our images, but take some precautions:
-have elegant watermarks (not overtaking the image, but more like a signature or stamp, off to the side, but still on the image.
-post low resolution images that cannot be printed in high quality.
-educate the public on our sites about how we want our images to be handled or shared. Assume that they have good intentions, but might not know what they are doing when they share without crediting the artist, etc.
Pursuing misuse of images can become a full-time job for an artist who develops a following. Each of us has to decide how much time and energy goes into that, or whether we focus on creating new work. I think that the worst violators are those who are selling images on their sites and that they are the ones that should be targeted.
Anyway, onward we go…. stepping forward into this increasingly complex and sticky web…
Yes, this is a sticky web, and so complicated it’s hard to really understand all of the the details and ramifications. Did you have an opportunity to view the video interview with Brad Holland? Even if only a portion of these consequences happened, artists would lose a great deal. Not surprising, because artists are often the ones on the losing end …
To me, this kind of legislation is essentially legitimizing mob rule/mentality: the old “everyone does it” argument, and the subsequent public shaming of artists (“get over it”) who speak out against their rights being infringed upon on the internet. (I should amend that and say public shaming of non-celebrity artists, because only the rich and famous’ rights seem to matter. Everyone applauds Taylor Swift for “defending artists’ rights” while she herself has the most abhorrent clauses in photographers’ contracts.) It’s disgusting.
Another case in point is a lot of the sad/hateful comments on a FB post from some German artists who are speaking out (in an *extremely positive* way) against MADONNA taking one of their paintings (it’s a model/painter team) and photoshopping her face onto the image (yes, I am sure she didn’t personally do it, but it’s her company and her marketing team) and then posting it to her Instagram with no attribution, etc.
Almost none of these things are true about the Orphan Works legislation report. Here is a link to the actual report, and it does not list these things. In fact, it would be extremely time intensive and complicated to be able to register as a user of orphan works and to prove that a diligent search has taken place to prove that the original author can not be found. If the original author does turn up, they will be compensated if their work was used in any way for profit and the user has to cease all uses of their art. If it was used for educational or non-profit uses, they still have to cease but the original artist doesn’t get financially compensated – that’s about the same thing that would happen now, except for those who have not officially registered with the copyright office you probably would not receive any compensation if you tried to take the infringing user to court. As I understand it, you’re only entitled to make them stop any further use and can only get awarded with money if you have registered your work. Not a whole lot will change, and some think that a new Orphan Works law would actually make it harder for educational uses of orphaned work. Brad Holland provided no sources or direct examples of the exact laws that would take effect, not even a page number where we can find these things on the report, so I am not just going to take his word for it. I encourage everyone to read the actual report and if there are places in it where his statements are written out, please point them out to me because I can’t find them: http://copyright.gov/orphan/reports/orphan-works2015.pdf
Thanks for your post, Angela. I appreciate your comment, and your opinion.
You mention that Brad Holland provided no sources or direct examples, but he actually provides in his original post the exact report that you linked to in yours. In addition, he provides a number of other links that lead to multiple papers he has filed with the U.S. Copyright Office.
This is a complex subject, and discussion is a great way to share opinions, whether you agree or disagree. If you read his original post here http://www.drawger.com/holland/?article_id=15400#comments you will see such a discussion going on in the many comments that follow his post. I think that the issues raised there and his answers are very interesting. Some raise more questions than answers. It might be a good place to join the conversation with him.
Carolyn, have you seen this? http://graphicpolicy.com/2015/07/20/dont-believe-the-hyperbole-theres-no-orphan-works-law-before-congress/
My take is that even if it is only in debate form, it’s still important to voice how we feel about such an important issue…
Hi Rachel,
Yes I saw that post the other day. Brad Holland has been replying to comment sections all day on other blogs and social media, because this is being highly publicized. I don’t know if you listened to the video he did with Will Terry (almost 90 minutes) but he has been intimately involved with this topic for years, has attended meetings on the subject, has testified on this matter, submitted papers to the Copyright Office, and documented the proposed changes.
Cherish Flieder has been taking a lead in publicizing this, and she comments on her Facebook page in response to the link that you mentioned:
There is no law at this time, but they have been holding hearings since 2014 in order to pass a new one. HOWEVER, They have opened COMMENTS, for a BRIEF TIME, to listen to what our needs are as copyright holders and licensees. DO NOT BE MISTAKEN, this is not hype, this is not a drill, this is not a hoax… This is very real!!!! Members of this group have gone to Washington on behalf of all of us creators to fight this, they have succeeded twice, they are weary of fighting this very real threat to our businesses and creative assets… Don’t wait until it is a bill when you can DO SOMETHING NOW to help guide what that future will look like.
We need everyone who believes that our current copyright act from 1976 should be with held up and to write. If you believe that others shouldn’t have rights to register derivative ‘orphaned’ works from your art without of being penalized with statutory damages, WRITE! (By the way, without this guarantee, attorneys will not be able to take artists cases on contingency, since they they won’t know if it’s an ‘orphaned’ works’ situation until halfway though a lawsuit. So then how do we fightback willful infringers.)
If you don’t want thousands of your artworks, sketches and so on (and millions, perhaps billions of other artworks by fellow living artists both in this country and abroad) to be instantly ‘orphaned’ and not protected UNLESS you register each and every one with a a third party, not the copyright office, a third party will be doing this (costing you time and money you don’t have to file), then WRITE!
Get your friends to write, this is imperative for the future of your art business and even greater risks are at stake as well….
You have only a couple days left. EVERY VOICE COUNTS! Comment period closes Thus July 23rd.
Here is her original blog post: http://artlicensingshow.com/your-copyrights-could-be-undergoing-drastic-changes/
and Brad Holland’s reply to the article that you mentioned:
I had a deadline yesterday and didn’t see this guy’s post until late in the evening. I’m afraid it’s history repeating itself.
Back in 2008, we got the news that Congress was planning to release an Orphan Works bill that would be fast-tracked for swift passage. So we put out an advance warning.
Someone posted an attack on the Internet, saying that there was no bill and that we were just trying to scare people. We were right, of course, as events proved: the bill came out a few days later and it said what we said it would say.
If we hadn’t gotten a jump on it, they might have passed it before we could alert artists.
I’m afraid we’ll be proved right again.
There is no bill yet, as I said on Will’s podcast. But the Copyright Office has given Congress its recommendations for one.The heart of its report is a resurrection of 2008’s failed Orphan Works Act.
That bill called for a return to copyright registration for every picture an artist wished to retain the rights to. Of course, registration would not actually protect your work – an infringer could still infringe you. But by registering it, you would at least preserve your right to sue in US federal court – if you could afford to.
Unregistered pictures would still be yours and in theory, clients would still have to get your permission to use them. But whenever an infringer concluded that he had made a “reasonably diligent” but unsuccessful effort to find you, then he could infringe your work as “orphaned.” In that event, he would have to pay you only if you caught him, tracked him down and agreed to accept whatever money he was willing or able to pay you.
The Copyright Office has even suggested that there should be an orphaned symbol (similar to a © mark) placed on each newly-orphaned image. That would signal its availability as free art to other infringers. Some have called this a “come-and-get-it” symbol.
Our critic says the 2008 bill passed the Senate – which is true – so I guess the new Congress shouldn’t have to waste time debating it again, right? He’s repeating the account in the 2015 Copyright Office Report. But unfortunately, that account doesn’t exactly tell the whole truth:
“The limitation on liability approach was thoroughly analyzed and unanimously adopted by the Senate in 2008, and in the [Copyright] Office’s view it best balances the benefits and burdens of interested parties.”
http://copyright.gov/orphan/reports/orphan-works2015.pdf
“[T]horoughly analyzed and unanimously adopted…”Let’s take a look at that:
The Senate conducted only one hearing on orphan works legislation, April 6, 2006. It lasted only an hour and a half and had only 6 witnesses. I know, because I was one of them. My Senate testimony is here: http://www.judiciary.senate.gov/imo/media/doc/Holland_Testimony_040606.pdf
There was only one Senator present throughout the entire session: Chairman Hatch. The Ranking Member came in and out, mostly taking photographs. In 2008 the Senate held no orphan works hearings at all.
The Senate passed S.2913, The Shawn Bentley Orphan Works Act Sept. 26, 2008 by a controversial backroom maneuver known as hotlining. This is a tactic that permits Senators to pass certain legislation “with little or no public debate.” Critics charge that it allows them to sign off on legislation ” neither they nor their staff have ever read.”
Here’s how the Capitol Hill newspaper Roll Call described the tactic:
“In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object — in some cases as little as 15 minutes. If no objection is registered, the bill is passed.” (Emphasis added)
– “‘Hotlined’ Bills Spark Concern, Roll Call, Sept 17, 2007 http://www.rollcall.com/issues/53_27/-20011-1.html
In 2008 the subcommittee chairs tried to hotline their bill twice. But each time we contacted concerned senators and the bill was put on hold. The third time they hotlined it in the evening – after hours – the night of the first televised presidential debate between Obama and McCain.
With Senate offices closed, we got nothing but out-of-office recordings, and even the legislative aides we could reach by Blackberry told us they hadn’t been given enough time to read the bill.
As we wrote at the time: What better way to pass a bill that was written in secret than to pass it while nobody’s looking. http://ipaorphanworks.blogspot.com/2008/09/orphan-works-devils-own-day.html
The Senate bill died October 3, 2008 when the House failed to pass a companion bill.
In writing to the Copyright Office, it’s probably best to refer to “orphan works proposals” instead of orphan works “bill.”
But remember: the Office says there are several other visual arts issues that are “ripe” for legislation:
copyright small claims, resale royalties, and other forms of secondary licensing which most artists have never heard of. These are all included in their recommendations to Congress.
For instructions and sample letters you can go here: http://myemail.constantcontact.com/Artists-Alert–The-Return-of-Orphan-Works-Part-2—ARTISTS–LETTERS.html?soid=1102063090742&aid=DEeIBiwWgJ4
And thanks to everyone here for your responses yesterday. You’ve been amazing!
Writing from the UK…
What is to stop a USA based artist ‘taking over an image of mine from say my website’ and then declaring it a ‘Orphan’? Purely because it was not registered in the USA copyright system?
Registration of copyright in the UK is not [yet] needed…we watching to see what’s going on here!
Just remember its a £50, 000 / $75,000 fine under UK legislation…for copyright infringement. But of course the person with the deepest pocket will always win!
Another very interesting read Carolyn, thanks for it.
Good question, Phil. I don’t have the answer, but as Brad Holland said – it affects artists internationally. I believe you’re correct that the person with the deepest pocket will always win.
This is a very disturbing and confusing topic for many artists. Stories about lawsuits always seem to involve vast amounts of money and in the end, the artist doesn’t really win even if they reach a successful outcome.
Here’s an update on the horrors of Wallpart.com – an artist who was outraged did an investigation and found that this site is even more odious than it seems. Read his article here http://peterandcompany.tumblr.com/post/124924181627/phishing-warning-avoid-wallpart-at-all-costs