The Artwork of Michael Divine

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Say “No” to the Orphaned Works Act

April 29th, 2008

“Under current copyright law, in effect for the last 30 years, your
visual art is copy protected whether or not it is registered or carries
the copyright symbol.

This week, the U.S. House of Representatives is expected to introduce
the Orphan Works Act of 2008. If you care about protecting your work,
you’re against it. It will have the effect of wiping out any copyright
on visual art now in existence, throwing your work into the public
domain. If you wish to protect your work (each and every separate piece)
you will have to digitize it and register it with private sector
registries as yet uncreated, for a fee as yet unestablished. I say
registries because this bill places no limit on how many separate
registries there could be.
The fastest, easiest thing is to sign a petition here:
http://www.gopetition.com/petitions/no-to-orphan-works-act.html

It gets worse.  Anyone can submit images, including your images. They
would then be excused from any liability for infringement (also known as
THEFT) unless the legitimate rights owner (you) responds within a
certain period of time to grant or deny permission to use your work.

That means you will also have to look through every image in every
registry all the time to make sure someone is not stealing and
registering your art. You could actually end up illegally using your own
artwork or photo if someone else registers it.

Please read more in this excerpt from illustratorspartnership.org;  I
know it’s long, but it’s worth reading.  Also, note that while their
site is geared to illustrators, everything they say applies as well to
photographers, musicians, filmakers, painters, writers, etc:

Since the last bill died in committee in 2006, the advocates of this
legislation have promoted the creation of private commercial registries.
On January 29, 2007, a lead attorney for the Copyright Office warned us
that under their plan any work not registered with a private sector
registry would be a potential orphan from the moment it was created.

This means you would not only have to register your published work, but
also:

— Every sketch or note on every page of every sketchbook;
— Every sketch you send to every client;
— Every photograph you take anywhere, anytime, including family photos,
home videos, etc.;
— Every letter, email, etc., professional, personal or private.

This Would End Passive Copyright Protection: Under existing law the
total creative output of any “creator” receives passive copyright
protection from the moment you create it. This covers everything from
the published work of professional artists to the unpublished diaries,
letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be
covered unless the creator took active steps to register and maintain
coverage with a commercial registry. Failure to do so would “signal” to
infringers that you have no interest in protecting the work.

The Registration Paradox:
By conceding that their proposals would make potential orphans of any
unregistered works, the Copyright Office proposals would lead to a
registration paradox: In order to “protect” work from exposure to
infringement, creators would have to expose it on a publicly searchable
registry. This would:

— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the
Orwellian premise that you must expose it to “protect” it.

Yet registries will not be able to monitor infringements nor enforce
copyright compliance. Even after you’ve shelled out “protection money”
to a commercial registry to register hundreds of thousands of works, you
still won’t be protected. A registry would do nothing more than give you
a piece of paper. You would still have to monitor infringements – which
can occur anytime anywhere in the world; then embark on an uncertain
quest to find the infringer, file a case in Federal court, then prove
that the infringer has removed your name or other identifying
information from your work. Meanwhile all the infringer will have to do
is say there was no such information on the work when he found it and
assert an orphan works defense.

Coerced registration violates the spirit and letter of international
copyright law and copyright-related treaties. And because this bill
would effectively eliminate the passive copyright protection afforded
personal correspondence, family photos, etc. it would tear one more
slender thread of privacy protection from the fabric of fundamental
rights we currently take for granted.

We urge Congress to carefully reconsider the unintended consequences of
this radical copyright proposal.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’
Partnership

So, what to do about this?  More from the Illustrators Parnership
website:

March 19, 2008

We expect a bill to be released after the Easter recess. Sources say it
will be introduced in the House and Senate simultaneously, and
fast-tracked for a vote in the House by mid-May. Advocates hope for
swift passage before the summer recess.

The decision to introduce such a radical bill so late in the session is
ominous. Because of fall elections, this will be a short Congressional
year. Any bill not passed by the end of Congress will have to
re-introduced in the next Congress. That means the bill’s sponsors must
know they have their ducks lined up.

So, I urge everyone to:

GET ON ORPHAN WORKS E-MAIL LIST

To be notified of the latest information on the Orphan Works bill and
when to contact your legislators, send an email to
illustratorspartnership@cnymail.com and ask to be added to the Orphan
Works list.  You can also visit the IPA Orphan Works Resource Page for
Artists for more information, because I didn’t even detail all the
disgusting facets of this shocking legislation:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

Both House and Senate versions of the Orphan Works Act of 2008 can be
downloaded from the IPA homepage:

http://illustratorspartnership.org/

And… please act!

The fastest, easiest thing is to sign a petition here:
http://www.gopetition.com/petitions/no-to-orphan-works-act.html

Go to http://www.usa.gov/Contact/Elected.shtml to quickly find the phone
number, address and e-mail of every U.S. senator, U.S. representative,
and state legislator. In the meantime, please feel free to forward this
to all the artists you know.”

The Artwork of Michael Divine

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