Wednesday, July 05, 2006

The Orphan Works Bill & it's Negative Ramifications for Artits and Writers

Artists and photographers aren’t the only professionals threatened by the Orphan Works Bill. Countless small businesses will be hurt. Copyright Attorney Megan E. Gray represents textile designers, sculptors and other visual artists who license their work to various industries. She is affiliated with Roylance, Abram, Berdo & Goodman, L.L.P. Because I am a copyright attorney, I have been following the Orphan Works bill, and have been astonished at how few companies are aware of it, even those who have built their business on the exploitation of visual designs. In the briefest summary, the Orphan Works legislation gives your competitors, customers, and anyone else the right to use your design so long as they had reason to think it wasn't copyrighted. If you catch them, you might only be entitled to a trivial monetary payment. Currently, under the Copyright Act, if someone copies your design, you are entitled to that competitor's net profits from the infringement. And, if you registered the design prior to the infringement, you are entitled to statutory damages (as high as $150,000) and recovery of your attorneys fees (which can be massive). These monetary penalties are intentionally high in order to provide a solid disincentive to infringers and a serious incentive to original designers. For years, the guiding principle in the design world has been "if you didn't create it, don't use it." With this new legislation, that principle will be turned on its head. Under the "Orphan Works" proposal, if someone copies your design, if that person didn't know that the design was yours (for example, if a big company orders a million shirts with your design from a Chinese manufacturer who fraudulently showed your design as part of its open line, claiming that it is public domain), then all you could ever get is "reasonable compensation." This could very well be peanuts, notwithstanding that the infringer made a massive profit on the shoddy items bearing replicas of your design (apparel, stationary, holiday cards, shower curtains, pillows, you-name-it). And you will never recover your attorneys fees or have the option of statutory damages, not even if you went to the trouble of registering your copyright years ago, and regardless of whether you have always placed the © notice on your product. Further, if you and the infringer disagree on what "reasonable compensation" is, you may be hard-pressed to litigate the matter, because your attorneys fees may end up being greater than what you could get as a "reasonable compensation." So, you'll likely just have to take whatever is offered to you, and have no ability to negotiate a higher sum. And, keep in mind, any promises of exclusivity of a particular design you make to a customer will be a sham. Museums and libraries created the "Orphan Works" legislation so that they could create exhibits and souvenirs with photographs, music, books, etc., whose copyright owners could not be identified. Their fear was that, notwithstanding their effort to find the copyright owner, that person would suddenly crawl out of the woodwork and demand high monetary damages based on the infringing exhibits/souvenirs. There isn't any fundamental objection to providing protection against that situation. But the legislation is so broadly drafted, it isn't limited to that scenario - the legislation applies to all copyrighted works, all commercial uses, and all users/infringers. The breadth of the legislation is particularly horrifying in the context of visual art, like textile design, because of the overwhelming amount of infringing material found in the most common manufacturing locales, like Asia. Proponents of the legislation say that you can protect your copyright by making it easy for you to be found, to make it easy for anyone to know that a design is yours. How is this to be done? Well, the legislators say that all you need to do is "just" digitize and create an online database of each and every visual design that you own or hereafter create, and publicize that database in numerous trade magazines in a variety of industries, or perhaps "just" create a new trade association comprising all the visual artists in the country (jewelers, tattoo artists, photographers, ceramic tile companies, wrapping paper companies, carpet designers, etc.) and, through that organization, digitize everyone's designs and have a single, unified online database, searchable by scanned designs. In other words, Congress seems to think that you have budgeted several million dollars to fundamentally change the way you do business. And, to add icing to the cake, no computer technology currently exists that makes it possible to create a searchable database of designs.Frighteningly, this legislation is moving very fast in Congress and it appears likely to be made into law soon. It is critically important to get trade associations and individual companies acting against the legislation, and contacting and meeting with key Congressional legislators as well as their own Senators and House Representatives. Please do not underestimate the importance of making your voice heard - it is the only thing that will prevent this legislation from becoming law.Personalized letters talking about your own circumstances are the most persuasive. The most critical points to include in the very first paragraph of your letter are that (1) you are a constituent; (2) you are writing about the proposed "Orphan Works Act of 2006" now before the House Judiciary Committee, and (3) you are opposed to the bill. You can identify your representative by entering your zip code into— Megan E. Gray mgray@roylance.comTo read H.R. 5439 - The Orphan Works Act of 2006, go to http://thomas.loc.govEnter H.R. 5439 in the search box, and select the "Bill Number" search option. It will take you to a master page where you can monitor this Bill's status as it moves through the process. You can review who signs up to Co-sponsor the Bill, amendments that may be added, and all Congressional actions on votes and reports. For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists searchterm=00185 Or see IPA Forums: “Free Culture-The Copy Left Is Not Right.” You may post responses or ask questions on these forums. First-time users will be asked to register. You do not need to be an IPA member to use the IPA public Town Hall Forums.
Please post or forward this email in its entirety to any interested party

No comments: