Update on Orphan Works Legislation

[AnneL]

Testimony given earlier this week by the copyright office that explains this legislation for all those artists who are concerned about it.

http://www.copyright.gov/docs/regstat031308.html

[SportShots]

If you do ANY kind of artwork you need to contact your Senators and Representatives and let them know of your feelings on this legislation. I am very much against it for the simple reason that if anyone uses one of my images and can claim they tried to locate me and couldn't, they can use the image for whatever they want and I have minimal recourse for unauthorized usage. They can use it for tobacco advertising, something I would NEVER allow. All they have to say is they 'searched' for the artist who owns rights to the image they used and could not find them. They use the image and I am precluded from filing for Copyright infringement and statutory fines and fees... and am limited to a much smaller amount for their using my work without permission or payment of fees.

All artists work is fair game under this legislation. This will not be good for any of us. We create and effectively lose the rights to make a fair profit from our work and lose the right to restrict usage.

Read the legislation and give your elected Representatives a call on it.

[AnneL]

You obviously didn't read through the testimony that was in the link I posted. The current version of the bill allows for no such thing! It will actually protect artists from this happening. Earlier versions were vague but there has been a huge effort in lobbying by professional photographic and visual artist groups to put protections in place. This current version of the bill has those protections in place and if you read the testimony carefully you will see that they are very well defined and artists retain their rights.

Here is more I posted on another thread. http://www.thegrumble.com/showthread.php?t=31501&highlight=orphan+works

There are alot of rumors going around about this bill, most of them false. It will actually provide artists with more protection than they have now. Don't believe the rumors and get the truth about the bill!

It is actually something all artists should support!

[Luddite]

You obviously didn't read through the testimony that was in the link I posted. The current version of the bill allows for no such thing! It will actually protect artists from this happening. Earlier versions were vague but there has been a huge effort in lobbying by professional photographic and visual artist groups to put protections in place. This current version of the bill has those protections in place and if you read the testimony carefully you will see that they are very well defined and artists retain their rights.

Here is more I posted on another thread. http://www.thegrumble.com/showthread.php?t=31501&highlight=orphan+works

There are alot of rumors going around about this bill, most of them false. It will actually provide artists with more protection than they have now. Don't believe the rumors and get the truth about the bill!

It is actually something all artists should support! THANK YOU for a clear,correct,honest approach to this issue.I have been wondering about this,and wether to start "worrying" or not.I have to say that this forum is much more mature,and correct info oriented(least on THIS topic) than the sci-fi/fantasy art group I "belong" to.They simply proceeded to blindly tear each other new ones,and that just because someone brought up the topic,with not much opinion behind it.Frankly some of those folks scare me....Let em mount art incorrectly from now on I ain`t helping anymore,got eaten alive there too.... L. (masking tape...all 4 sides!? whatever):shrug:

[tuvw340]

Nice topic, nice article.------------------------------------------------------My site wow gold (http://www.1-wowgold.com)

[AnneL]

Luddite, my daughter got the same reaction on the networking forum she is on for artists. Fortunately, the professional photographers association we belong to has it's own lobbyists who watch for legislation that could affect photographers and have been working on getting this one changed to protect the rights of artists.

[SportShots]

"If the copyright owner of an orphan work photograph emerges, the user(s) of that photograph would have to provide reasonable compensation. Failure to negotiate and provide that payment in a timely manner voids orphan works protections."

This provision still means you lose. "Reasonable compensation" if my work were used by a tobacco company would be the death of them all. Their definition wuold be much different from mine.

Using my images without my permission for something I would NEVER allow under any circumstances is not even in the cards. Slime like smoking pushers are not what I would ever provide work for. Their stealing and my having to settle for it with money is not OK.

If you don't know who did it, leave it alone. Can' t be much simpler than that.

It is a lot like having internet sites link to yours or use thumbnails of your images as a 'public service'. Many are sites that advertise #### I would never have anything to do with. I shoot it, I paint it, I control it. I don't want my name associated with some of these sites or the advertising they allow on them for any reason.

The orphan works bill is another way for slimy corporations pushing death to get their hands on work they would not otherwise have legal access to and the governments way of telling me I HAVE To do business with them and all is OK as long as I get some money out of the deal. Politicians don't care what whore they sleep with, they can rationalize anything. Some of us have limits as to who we will be seen with and the Orphan Rights baloney is a way to force unwanted associations on us.

Your definition of "protection" and mine are different. With yours getting your daughter raped is OK if you get paid, the offender apologizes and those in charge feel good about the outcome. Mine is to Never have to deal with the slime in the first place and if they cross the line they are finished permanently.

[Jay H]

Yea this one is as bad as the first one that died on it's face. It basically makes it impossible for an artist to comply and even if you are in compliance they want to limit the liability of the infringer.

From the link.

"The Copyright Act of 1976 ... copyright protection became automatic for any work of authorship fixed in a tangible medium (e.g. on paper, on tape, in a computer file) and registration with the Copyright Office became optional."

That is good. When you create something, it is automatically yours as it should be. The burden of proof is on the artist but they're free to do that as diligently or as casually as desired. Even doing nothing, they OWN the work.

" To reduce the possibility of a work falling into the public domain because of failure to publish without a copyright notice, the new law contained liberal curative measures."

Let me translate this. "The new law allowed an artist to sue the h3ll out of you if you take work that doesn't belong to you." We need this ability. If there was a limited punishment then an thief may make a calculated decision to take anything they want. Surely they aren't wanting to change that are they? Yes!

"...we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation”

"As defined in our Report, reasonable compensation should be the amount “a reasonable willing buyer and reasonable willing seller ...would have agreed to at the time the use commenced.”

"In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements ...the court may reduce the award to zero."

Translation, “we want to make it so that if somebody steals your work, you can only sue for the value of the work.” So if you snap a shot of your kid that picture its worth what? $100? Well if I decide I can sell it, or make it part of another work, that I can sell for $30,000 then its a good investment.

It even goes further than that.

"Such a recovery is fair because it ...allows the copyright user to more precisely gauge his exposure to liability."

So again it gives thieves the ability to carefully calculate their liability. So basically a thief can steal your work outright or risk getting caught at which time they still only have to pay the actual value. So why would anybody ever buy anything ever again? If you just steal it your liability is limited to what you would have had to pay in the first place. This stinks to high heavens but gets worse still.

There is one exclusion to this limitation of statutory damages. That is if somebody steals your work and uses it for commercial uses. So we're safe right? Well no.

"...exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement." (SIGH). So if an Ad agency uses your photos in an ad and you notify them that its protected work and they stop using it, YOU CAN"T SUE THEM FOR THE USE OF THAT PHOTO. So back to that picture of your kid. Say that kid is the Gerber baby. All you can do is ask them to stop. If they YOU'RE S.O.L.!!!!!!!

I'm sorry but I'm failing to see how this is a good deal for artists. The government addresses this like this and this is what I think their motivation is.

"Statutory damages are an alternative means by which a copyright owner may recover against an infringer...However, they are only available if the owner has registered the work prior to the infringement..."

THERE

YOU

GO

This is what all this is about. You will have to register every work you produce or forfeit rights to that work.. You can bet there will a fee to register each piece and it will be just a bit easier than buying a home. At least if you are able to get each piece registered, you'll be protected right? (sigh) No!

"... it is possible that a registered work could be an orphan work within the proposed legislative framework."

Anne I fail to see why this is just a great deal. Currently when the shutter on my camera falls I own that image. If I can show that I infact own that image, by any method I choose, I can protect it as violently as I desire.

If these jokers prevail the work will be orphaned until I successfully register the work. Even then my protection is only as strong as other similar work if I'm lucky. If I'm unlucky then the court may decide that my compensation is $200 or nothing at all. If I notify them to stop, then my compensation is exactly $0.00. If it's not registered properly then its orphaned from day one and I have no rights to it at all.

[AnneL]

There is no need to get so vehement about this or so rude. To equate having an image stolen with rape is a bit extreme. This is exactly the kind of reactionary attitude that does the issue no good and only gives artists a bad name.

You are purposely misreading things. You will not be forced to do business with anyone you don't want to and if your work is properly marked or registered they do have to contact you first, at which point you can say "no."


I did not write the bill, but the professional photography organization I belong to (Professional Photographers of America-PPA) would not agree to anything that would take away a photographer's rights.

If you had an image stolen, you should be able to prove it. If you registered it with the copyright office, you can collect full damages. If not, your liability is limited. Registration isn't expensive or hard and you can register mulitple images at once. As a member of the PPA, if this had happened to us, they would have fought the company for us. They still might be able to advise you since I know they are will help nonmembers also.

[AnneL]

Jay, this doesn't automatically orphan your work. You too are misreading things and twisting them all out of proportion. You are chosing to ignore and/or distort the safeguards that are in this bill to protect artists rights.

By registration they mean registration with the copyright office, which is a simple process with a single fee of $45 that will cover basically as many images as you chose to send them at a time. It will soon be even easier once they are done getting online registration up and running.

By the way, if you do not register your copyright now, you can only collect limited damages anyway. You can only collect full damages on works that have been registered with the copyright office.

Orphan works is something that congress is going to address whether you like it or not. They are under alot of pressure to do that, not from corporations but from the general public who are frustrated every time they go to get a copy of a picture but can't because they can't find the photographer who took it, either because it was never marked or that person is no longer in business. We are our own worst enemy's sometimes.

This current version has the support of a number of artists organizations who have been lobbying to have the very safeguards you chose to mock put in for their members protection. They definitely would not support it if they did not feel it was a benefit to the artists they represent. Trust me, these people have gone over it with a fine tooth comb, looked at all the potential loopholes, and closed them. This is the first version they have supported. They have opposed and fought against every other version that was written. Be glad they have, because the other version really would have taken your rights away. They have made sure your rights were protected against very strong lobbys to do the opposite.

Some form of orphan works is going to be passed in the next few years. I trust the PPA when they say this version is the best compromise for all parties concerned. They have been protecting photographer's rights for over a hundred years and know what they are talking about.

[AnneL]

if you are worried about losing the rights to your work is the terms of use you were required to read and agree to on any online image hosting you may use, like Photobucket. There are some that if you agree to them, you are basically giving them the rights to your images to use in anyway they want. For that reason, I've stopped using them for anything I'm concerned about and basically use them for things that other people send me that they forwarded on from somewhere else or pictures I don't really care about since they are pretty generic and not particularly good quality, like my cats.

[Jay H]

Your claims must be formed from something you've read on other sites. I did draw my facts from the report you linked. If I'm distorting anything please point EXACTLY to me where I'm wrong. If I limit my scope to this report I find it difficult to see to much positive about this from an artist point of view. The only positive spin on this is directly from the PPA. Even they state that they are “cautious but optimistic”. That's hardly the ringing endorsment you are giving this.

Much of your statements are direct contradiction to that report. Have you read the report?

Jay, this doesn't automatically orphan your work. You too are misreading things and twisting them all out of proportion. You are chosing to ignore and/or distort the safeguards that are in this bill to protect artists rights.

From the report - "Statutory damages are an alternative means by which a copyright owner may recover against an infringer...However, they are only available if the owner has registered the work prior to the infringement..."

What am I missing?


By registration they mean registration with the copyright office, which is a simple process with a single fee of $45 that will cover basically as many images as you chose to send them at a time. It will soon be even easier once they are done getting online registration up and running.


From the report - "On a practical level, it is difficult to imagine how the Copyright Office or any government office could ever keep pace with the image technology world that exists outside our doors and beyond our budget."

It sounds like to me that you claim that there is already a plan in place? Where did the $45 come from? Did the author of this report not know that there is already a plan in place? When addressing the concerns of photographers in this report, why didn't he just say it was so easy? Something is amiss. Either you've been misled or the author of this report from the copyright office isn't aware of processes already in place in their own department.



By the way, if you do not register your copyright now, you can only collect limited damages anyway. You can only collect full damages on works that have been registered with the copyright office.

This is yet another direct contradiction.

From the report - "The Copyright Act of 1976 ... copyright protection became automatic for any work of authorship...and registration with the Copyright Office became optional... the new law contained liberal curative measures."

What did I missunderstand?

Some form of orphan works is going to be passed in the next few years. I trust the PPA when they say this version is the best compromise for all parties concerned. They have been protecting photographer's rights for over a hundred years and know what they are talking about.

I don't care to get into the politics of the PPA. I also won't use their rhetoric as the only info to form an opinion. Its bad that we can't read the bill because it's written too complicated. I do appreciate this report you linked though. I can read and understand it. When you skim the bills, as I have, it appears to match the report but I can't say for sure.

We've done this dance before and I think I know how it ends. Can you stick to the report, as I have, and show me exactly where this is good for artist? It makes it harder prove ownership, it limits your ability to seek compensation, and it protects infringers. Its just that simple.

[Luddite]

Can`t help but wonder about ORIGINAL art(my bread n butter). Since they are usually sold in short order,how would you register something like THAT? BTW,this directly from an atty,and possibly not as true now: The copyright symbol is as legally binding as being registered if you write a letter explaining your copyright fully as in "all works bearing my signature,etc.are property of..." Then mail the letter to yourself,really! Now you have a copy of the letter with a postmark etc. Also you should have people of a "official" capacity that know you and your work to be able to back you up.I have some gallery folks for that one.BTW, scary rule of thumb...If you change a design 30%,or more it is considered a different design,and not the original designer`s anymore.Obviously NOT applicable if the first designer is Disney,or a movie studio...DEEP pockets,lots of lawyers! Also can`t help wondering why artist`s forums are so hostile,logging in there is like skin diving with pirhanas!!! L.

[AnneL]

Luddite, you can take a photo of the work and register it that way. For more details on how to register copyright on your work, go to www.copyright.gov (http://www.copyright.gov) . I understand it's a fairly easy to navigate site.

[Jay H]

Luddite, what we are discussing is the image. Its the image you need to protect and not just the physical canvas. It would still need to be registered to protect your ownership of the image.

With these new bills they are kicking around, you will have to meet the formal requirements and certainly pay all the fees the law determines in order to protect your work. Just like you say your signature and what ever proof you care to offer should be enough and currently is. The government will certainly complicate this beyond what most artists will care to comply.


This is a different topic but the changing a design 30% is, I believe legend. Brandnames like Starbucks, Coke, Superbowl, and colleges are constantly forced to defend their brands from close knockoffs. Intent is the rule and not some percentage. If your intent is to "look like" xxxxxxxx then its still a violation regardless of how much of the work you changed.

There was several articles in Decor about a year ago from the Art Copyright Coalition. These guys are overly aggressive, IMO, and they said something like 1/2 of all works could be considered a violation. They have some examples of "infringements" on their site and while some are obvious, others require the suspension of reality to make such a connection.

[AnneL]

Your claims must be formed from something you've read on other sites. I did draw my facts from the report you linked. If I'm distorting anything please point EXACTLY to me where I'm wrong. If I limit my scope to this report I find it difficult to see to much positive about this from an artist point of view. The only positive spin on this is directly from the PPA. Even they state that they are “cautious but optimistic”. That's hardly the ringing endorsment you are giving this.

Much of your statements are direct contradiction to that report. Have you read the report?

I've gotten information from both magazines and websites for professionalphotographers, all from industry experts on the subject. It's interesting how different people can read the same thing and come to such different conclusions. I read it and did see positives for the artist, especially since I have seen outtakes from the earlier versions and know how bad they were. This version does a much better job of defining an orphan work and sets in place strict practices that have to be followed to do that.

I'm not giving this a ringing endorsement, but the same one the PPA has (cautious but optimistic). Some form of OW is going to be passed. This is the best version so far and if you read the PPA report you would notice that they feel that future forms of this legislation probably won't be as good.

From the report - "Statutory damages are an alternative means by which a copyright owner may recover against an infringer...However, they are only available if the owner has registered the work prior to the infringement..."

What am I missing?

The fact that you have to register the copyright for your work with the copyright office to collect statutory damages. Yes it is copyrighted when created, but unless you follow through and actually register it, your liability is limited in cases of infringement and you can't collect statutory damages. You used to be able to even if you didn't officially register it, but the courts later ruled that unless registered you couldn't.

From the report - "On a practical level, it is difficult to imagine how the Copyright Office or any government office could ever keep pace with the image technology world that exists outside our doors and beyond our budget."

What they are talking about is different than copyright registration. They are talking about the creation of databases of works and of artists so that a copyright owner can be easily located. They don't have the resources to do that. Currently you can check their database and find out if someone has ever registered copyright, but you can't view the piece they registered.

It sounds like to me that you claim that there is already a plan in place? Where did the $45 come from? Did the author of this report not know that there is already a plan in place? When addressing the concerns of photographers in this report, why didn't he just say it was so easy? Something is amiss. Either you've been misled or the author of this report from the copyright office isn't aware of processes already in place in their own department.

There is no plan in place in the copyright office to act as the search engine for artists. The person who gave this testimony is completely correct in what they stated (by the way, it was a she, not a he.) This is one of the things that needs to be worked out in the art community as to how to keep track of your work and of you as an artist. It has led to all kinds of rumors that artists will be "forced" to pay companys to have their work listed, which is completely false. I know in the professional photographic community, there are plans for our professional organizations to provide it as member benefit, but it will most likely be optional and if there is a fee, it will be minimal.

Your confusing what she was referring to with copyright registration, which is something different. The $45 is the fee you pay the copyright office to register copyright on your work or a body of work. That system has been in place since the copyright office was established in 1870. The biggest change is that you can now register copyright on multiple works for one $45 fee instead of having to pay that for each work registered. I know someone who just registered 5000 images at once. The file was 350mgs!

This is yet another direct contradiction.

From the report - "The Copyright Act of 1976 ... copyright protection became automatic for any work of authorship...and registration with the Copyright Office became optional... the new law contained liberal curative measures."

What did I missunderstand?

What you misunderstood was the fact that since the law was written in 1976, there have been decisions made by the courts that have changed the way damages are awarded, which is why even though registration is technically optional, it is now necessary that the copyright on a work be registered in order to collect other than limited damages.

I don't care to get into the politics of the PPA. I also won't use their rhetoric as the only info to form an opinion. Its bad that we can't read the bill because it's written too complicated. I do appreciate this report you linked though. I can read and understand it. When you skim the bills, as I have, it appears to match the report but I can't say for sure.

I'm not using just their rhetoric. I'm also in contact with photographers who work with some of the top copyright lawyers in the country and I've been consulting with them on this issue to make sure I get my facts straight on this. I've had them check in on these threads and so far they say I haven't made any major mistakes (other than to get into arguments over it) or given any misinformation. I started looking into it at first at the request of my daughter who has artists friends who were concerned.

One thing to remember about the PPA is they are one of the few trade associations that is nonprofit. Many trade associations exist to have trade shows and make a profit off them. All the money the PPA collects are used to benefit their members and one of the benefits they provide is to lobby congress to protect the rights of professional photographers. Since they are there in DC working on this, I think I'll trust their rhetoric. Their only political agenda is to better the photographic industry.

We've done this dance before and I think I know how it ends. Can you stick to the report, as I have, and show me exactly where this is good for artist? It makes it harder prove ownership, it limits your ability to seek compensation, and it protects infringers. Its just that simple.

I can stick to the report, but I'd have to post large chunks of it on here, not tiny little snippets taken out of context that way you have. If you read it carefully, you will see that it doesn't make it harder to prove ownership, it makes it easier. That is what all this is about, getting a system set up so that ownership of a work can be traced so that the owner and the potential user can get in contact with each other. It actually provides compensation that previously would have been denied (that thing about not having registered your work). And it sets criteria in place to set up steps that a potential user has to follow to find the owner of a work.

It's not a simple issue and the report is actually pretty complex. I understand what it is saying because I've been following this and other issues related to copyright for the last 19 years, ever since we opened our studio. There are sections that without that background, would be easy for someone to misunderstand, especially if they are looking only for potential negatives.

[AnneL]

Luddite, what we are discussing is the image. Its the image you need to protect and not just the physical canvas. It would still need to be registered to protect your ownership of the image.

With these new bills they are kicking around, you will have to meet the formal requirements and certainly pay all the fees the law determines in order to protect your work. Just like you say your signature and what ever proof you care to offer should be enough and currently is. The government will certainly complicate this beyond what most artists will care to comply.

The advice the atty gave Luddite is sound. The copyright symbol is legally binding and having proof of copyright ownership in some form is a good idea. However, these plus your signature are no longer enough to collect full damages.

The interpetation of the copyright laws have changed since 1976. There have been decisions made by the courts that have changed the way damages are awarded, which is why even though registration is technically optional, it is now necessary that the copyright on a work be registered in order to collect other than limited damages. So while it is copyrighted when created, unless you follow through and actually register it, your liability is limited in cases of infringement and you can't collect full damages. You used to be able to even if you didn't officially register it, but the courts have ruled since that unless registered you couldn't.

There are no proposed new registrations or fees to pay to the government. The only fee you currently have to pay is the one to register copyright on your work, which is $45 for as many images as you want to send them at once.

[Jay H]

I knew I was far out of my league considering that you have consulted with people who know people who are lawyers, I should just drop it.

The PPA's support of this is conspicuous and lame. I guess that's why there is very few in their class who both supports artist rights and supports these bills. Other than the improvements of this bill over the last their endorsement is basically “We're gonna get screwed. This bill screws us less than the last and much less than the next. Thats why we have to vote this in.” That's their stance, and it's lame. Considering the never ending list of groups that do not support this bill, the PPA is looking downright questionable.

These bills go a long long way into reducing an artists ability to protect their work. Its just that simple!These new bills, like the last, legitimize the use of copyrighted images without permission. Orphan works legislation shouldn't endanger the copyright protections now guaranteed to artists.

The problem lays mostly in archival works use by museums, libraries, school book publishers, and the like. The problem with these bills is while they do address the use of images to these groups they also make the laws so broad that it encourages theft and then protects it. Stevie Wonder can see that! How you can't is unimaginable.

It not only allows the use of images to anybody its exemptions aren't limited to historical archives but could be claimed for any contemporary image. So it protects thieves then opens an umbrella for them to still not only old works but works created today...tomorrow.

These bills do not and can not require the registration of work because that is against the law. But failure to do so will cause your work to be orphaned.

These bill do not protect work from being orphaned near as much as they will create orphaned work.

These bills do allow a user to LEGALLY use registered work if they can't locate an artist after a yet to be identified “search”.

To register your work you will be required to list your work for a search. The fee for this is not yet known. You don't know what this fee will be and the bills do not spell it out.

These bills do limit to an unacceptable limit the damages you can seek if your work has been stolen.

These bills will cause works that are not currently orphaned to become so.

I will crawl back under my shadowy rock of ignorance because I'm getting sunburned with all this brilliance. I'm sorry if my claim is to on task and isn't supported by unnamed people of unnamed positions of authority or unnamed court rulings of corrections to laws that nobody else has seemed to concerned about.

[AnneL]

Some form of OW is going to be passed by congress in the next few years. There is nothing anyone can do to stop that. All we can do is what the PPA and other lobbying groups have done and get a version that addresses the concerns of both the artists and users.

In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work. We also rejected proposals that would have limited the benefit of orphan works legislation to certain categories of works or uses. Both commercial and noncommercial users made compelling cases; moreover, these parties often collaborate on projects and both need the benefit of the law. Likewise, we concluded that there were significant problems with respect to all categories of works: published, unpublished, foreign and U.S. works.

No where does it say you have to register your work or it will be orphaned. There are ways to identify your work now (using a stamp with your name and phone number, signing it, inserting metadata into the file, etc.) so legitimate users can find you and ask permission to use it and provide you with compensation. The problem comes from the fact that work often isn't identified. It's especially common among photographers. How often have you gotten a photo in for framing with nothing to indicate who created it?

There is already a big problem with copyright violations. If someone wants to use your work illegally now they will, regardless of what laws are in place. It's the problem of legitmate users trying to locate the owner of a work that congress is under enormous pressure to address. I'd rather see a system in place to do that, even if it is flawed, than to have them just declare all unknown work orphaned and open to use by anyone.

By the way, I find your criticism of the PPA questionable and lame. How much do you really know about them as an organization? Apparently not alot since you seem to see sinister alterior motives in what they are doing. They have done more to protect photographers rights over the years than any other organization out there.

It's because of their efforts that many places like Wal-Mart no longer will copy professional images without the makers permission. They used to do it all the time till the PPA took legal action against them and a number of other similar operations to put a halt to it. That's just a small example of what they have done to protect photographers and help us stay in business.

[Luddite]

Luddite, what we are discussing is the image. Its the image you need to protect and not just the physical canvas. It would still need to be registered to protect your ownership of the image.

With these new bills they are kicking around, you will have to meet the formal requirements and certainly pay all the fees the law determines in order to protect your work. Just like you say your signature and what ever proof you care to offer should be enough and currently is. The government will certainly complicate this beyond what most artists will care to comply.


This is a different topic but the changing a design 30% is, I believe legend. Brandnames like Starbucks, Coke, Superbowl, and colleges are constantly forced to defend their brands from close knockoffs. Intent is the rule and not some percentage. If your intent is to "look like" xxxxxxxx then its still a violation regardless of how much of the work you changed.

There was several articles in Decor about a year ago from the Art Copyright Coalition. These guys are overly aggressive, IMO, and they said something like 1/2 of all works could be considered a violation. They have some examples of "infringements" on their site and while some are obvious, others require the suspension of reality to make such a connection. I know its the image.Still If I painted it Thursday and sell it Friday..Not much time to register,and not really worth the hassle there.As it stands, now at least, The signature,emblem,and copyright symbol are legal.if the changes go in effect it still may not be doable,for every piece(maybe 100-200 ayear).Wouldn`t it be better for the copyright owners to be able to register their signature,and emblem(and therefore everything bearing it) one time than to have to fork out $45 every time a piece is made?Not sure about art,but at least in the Holiday ornament/decor business the 30% rule is absolutely real! Least in overseas manufacturing showrooms.

[Jay H]

I think I understand. And currently I believe you are correct. You can currently handle this matter how you best see fit. Keep in mind I'm no lawyer and its quite clear I have no idea what I'm talking about.

If these bills were to pass, I think you would have to register the piece within three months of the image being used (or I guess in your case sold). I don't think there can ever be a "requirement" to register anything. You could still retain ownership of that image without registering it. Failure to register, and pay the fee, means that you can't reclaim orphaned work and see compensation. So I'm not sure what good it will do to prove that you own the image when you have no ability to protect it.

[Luddite]

I think I understand. And currently I believe you are correct. You can currently handle this matter how you best see fit. Keep in mind I'm no lawyer and its quite clear I have no idea what I'm talking about.

If these bills were to pass, I think you would have to register the piece within three months of the image being used (or I guess in your case sold). I don't think there can ever be a "requirement" to register anything. You could still retain ownership of that image without registering it. Failure to register, and pay the fee, means that you can't reclaim orphaned work and see compensation. So I'm not sure what good it will do to prove that you own the image when you have no ability to protect it. Hey,I NEVER said that you didn`t know what you were talking about..just throwing some what ifs into the wind for examination/comment.may bring this up with an atty. sometime,if I do i`ll let you know what the "verdict "was. L.

[Jay H]

Hey,I NEVER said that you didn`t know what you were talking about..just throwing some what ifs into the wind for examination/comment.

Oh I know, I was just jabbing!

[AnneL]

I know its the image.Still If I painted it Thursday and sell it Friday..Not much time to register,and not really worth the hassle there.As it stands, now at least, The signature,emblem,and copyright symbol are legal.if the changes go in effect it still may not be doable,for every piece(maybe 100-200 ayear).Wouldn`t it be better for the copyright owners to be able to register their signature,and emblem(and therefore everything bearing it) one time than to have to fork out $45 every time a piece is made?Not sure about art,but at least in the Holiday ornament/decor business the 30% rule is absolutely real! Least in overseas manufacturing showrooms.

Actually, you can register the copyright after the sale. The $45 covers as many images as you wish to send at once. I know photographers who do it quarterly or yearly, like the guy I know who just sent in 5000 images at once, all for the single registration fee of $45 (not $45/image, but $45 to register the whole 5000!) It is really very cheap insurance in case of a copyright infringement.

This something that is already in effect and has nothing to do with the Orphan Works bill. Copyright registration and Orphan Works legislation are two different things. Currently, you have a certain time frame in which to register the copyright after infringement has occured if you haven't already registered it beforehand. (I don't remember how long but it might be the 3 months Jay refers to).

This is not something new to the Orphan Works act, it is already part of the existing copyright law, as are the limits to the liability you can collect if you haven't registered the copyright on a work. You will still be able to collect some, but not enough to make it worth going after the infringer in most cases.

[Jay H]

Not only that but I believe the copywright office is specific that there is no blanket protection. Each piece has to be registered at some point. What your suggesting would allow you to eliminate the need to send $45. You don't think they would ever go for that do you?

[AnneL]

Nowhere did I suggest anything that would eliminate the need to send the $45 fee. You still need to send that fee each time you register something. However, they changed the laws in recent years so that instead of registering each piece seperately and paying a seperate fee for it, you can now register multiple pieces at once for one $45 fee that covers all of them. The next time you want to register more pieces, you need to send another $45 along with them.

The date they receive your registration is the date the registration starts on for all the pieces in that group. Essentially you can now batch register your work and send in multiple pieces to be registered at the same time for one $45 fee.

[AnneL]

This is from the copyright office's website, www.copyright.gov (http://www.copyright.gov). It describes registration and how to register. The reason you can register multiple pieces at once is because they are considered a body of work when submitted that way.

"Copyright Registration


In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Registration establishes a public record of the copyright claim.
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import (http://www.cbp.gov/xp/cgov/import/). Click on “Intellectual Property Rights.”Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.
Registration Procedures

Original Registration

To register a work, send the following three elements in the same envelope or package to:

Library of Congress
Copyright Office
101 Independence Avenue, SE
Washington, DC 20559-6000

A properly completed application form.
A nonrefundable filing fee* (http://www.copyright.gov/circs/circ1.html#note) for each application.
A nonreturnable deposit of the work being registered. The deposit requirements vary in particular situations. The general requirements follow. Also note the information under “Special Deposit Requirements (http://www.copyright.gov/circs/circ1.html#sdr).”
If the work was first published in the United States on or after January 1, 1978, two complete copies or phonorecords of the best edition.
If the work was first published in the United States before January 1, 1978, two complete copies or phonorecords of the work as first published.
If the work was first published outside the United States, one complete copy or phonorecord of the work as first published.
If sending multiple works, all applications, deposits, and fees should be sent in the same package. If possible, applications should be attached to the appropriate deposit. Whenever possible, number each package (e.g., 1 of 3, 2 of 4) to facilitate processing."

[Jay H]

You don't think they would ever go for that do you?

I don't know how to do green text. "You" wasn't you, it was Luddite. And it was a jab that the government is going to tax everything they can. It was a joke.

A really great response, if you felt so inclined, would have been "Ya your right they will always get theirs..."

I have dropped this never ending discussion with you two posts ago. I remember the last discussion we had when I said I wouldn't end up in any discussion with you again. Boy do I have egg on my face now? I assure you it won't happen again. I'm a slow learner. I humbly bow to your vast knowledge of every copyright related and everything else for that matter.

Carry on.

[SportShots]

Why don't I need to be reactionary. I have read the bill in three different iterations. I have spoken at length with attorneys for ASMP, APA and NPPA both. (American Society of Media Photographera, Advertising Photographers of America, National Press Photographers Association) I have spoken with Orrin Hatch, Senator from Utah on this.

The big concern I have is unauthorized use and 'fair compensation' and use I would NEVER authorize being forced on me. Stealing my work is not acceptable and every organization working on/against this will allow it as long as I am paid 'fair compensation' after the fact.

How do you pay 'fair compensation' for rape... and I do use the term as that is what happens.

PPofA is a wedding and portrait outfit traditionally, not a working group for much of the commercial industry.

A lot of what is said sounds nice but shows a lack of courtroom experience. Ever had to go to court to enforce these rights? It is a loser no matter who wins. Even if the law is 'plain on its face' you can get a judge who thinks it is foolish and finds against you and you are out a few thousand or tens of thousands more for appellate work. You are out a few years of time as well.

NO use without permission and payment of fees. If I want to give my work away that is my privilige. Being forced to let some idiot librarian or museum steal it is as stupid as letting an idiot kicker plan strategy for a football team.

[SportShots]

For those who actually believe in the legal system and easy enforcement of your copyrights, take a look at this one. Do you really have the time to spend?

Orphaned works only means they cannot find you. The courts will take a liberal interpretation of their 'good faith' claims of their efforts. Meanwhile you lose for years while trying to get things taken care of.

Read the entire webpage history of this suit knowing the infringers committed perjury, the judge knew it and nothing was done.

Do you really have this much time to waste for so little recovery?

http://www.cgstock.com/essays/copyright_lawsuit

Photography Copyright Lawsuit (06-cv-01164, D. Minn.)
This webpage describes litigation between myself and a Twin Cities corporation who published photos on mine without permission. They are currently paying the federal judgment I was awarded at trial, and I have agreed not to identify them by name on this webpage while they are cooperating with that payment plan.
A local business took the two photos at right from this website and used them in a series of advertisements. Collecting the licensing fee/damages required going to federal court, where I represented myself and won a judgment of $19,462.Jump to: defamation lawsuit - copyright lawsuit - counterclaims - judgment - collection

I am an independent photographer and the creator of this website. A local business published two photos taken from this website in a series of ads. I discovered the first photo (#2891 on this website) in May of 2005 when I saw their ad on the inside cover of a Twin Cities phone book. They would not pay the licensing fee.

I first wrote that the other party was using a photo of mine without permission on this webpage in September of 2005. The other party's lawyer (Morgan Smith, at the time) demanded I remove the webpage or face a lawsuit for defamation. I did not comply, and they filed a defamation lawsuit against me in Minnesota State Court.

The defamation lawsuit claimed that the photo they published was not mine, but was taken by a photographer named "Michael Zubitskiy". They then purchased the rights from Zubistkiy, shown in a sales agreement notarized by Vladimir Kazaryan.

I filed a lawsuit for copyright infringement against them in federal court in March of 2006. They filed several counterclaims, such as trademark infringement. A Verdict was issued on February 15th, 2008. Below are the full details.

[Jay H]

It's interesting that you mention librarians and museums. I think they have a real battle. The way I understand this there is lots of great work out there that can't be displayed. Often they can't determine the owner. This group is at the heart of the problem, and not little old aunt Jane. This group needs some better rules because after all they are a public works and we all benefit. There is no need for something like this to be so difficult for them to be legal.

These bills, as I understand them, go way beyond simplifying life for these guys. It basically legalizes theft. Really it legalizes theft for everybody but specifically for them because your ability to seek damages could be reduced to $0.00. Who cares if its "legal" if the only punishment for stealing is that you have to take the work down?

I'm not against helping that group out but the current state of these bills are way to liberal for me.

[AnneL]

SportsShots, PPA isn't just portrait and wedding photographers anymore, we have had many commercial photographers join in the last few years. Our president last year was a commercial photographer from New York. He knows what you are going through. He's had it happen to him.

One advantage to being in the PPA, no matter what kind of photographer you are, is their legal department. If something happens like you describe, they are only a phone call away and can provide you with legal help, often at little or no cost to you. Many times, their lawyers would be able get a settlement without having to go to court. It's still not an easy thing to go through but having help from people who do this on a daily basis eases some of the burden.

In your case, no law would have changed what happened since the company was ignoring the laws and stole your photos even though it was obvious who the maker was. I'm glad you were able to win a settlement against them. Too bad you can't name them. It would be nice to make an example of them.

[SportShots]

For clairification, I am NOT The photographer whose work was stolen and used without permission. I posted that to show what can happen even when the work is fully registered, the thief is caught in lie after lie and 'the system' is actually used to try and right a wrong.

The perception we have of the worth of our efforts and some idiot judge may be way different. To finally get things where they should be means going up the ladder to higher courts and much greater court costs. Basic estimate to get your case handled by an attorney at the Supreme Court level will be right around a Million $$$.

If the courts saw how badly this guy perjured himseld and nothing was done to him what will happen to a guy who claims he looked but could not find out who owned the work before he used it... and then all he really has to do is pay a 'reasonable use fee'?

This legislation is BAD news.

As for displaying work, nothing in the laws now keeps you from doing that. If you have the work legally, you can display it. Commercial use, duplication, publication and derivitive works are the problem.

[AnneL]

I can't help but feel that if the photographer in this case had had a copyright lawyer defending him instead of defending himself, more would have been done. While he did a good job and won a judgement in the end, the other guy's lawyers probably would have thought twice about pulling some of the things they did if they were facing another lawyer instead of the plaintiff alone. The copyright lawyer would probably have taken the case just to make an example of these creeps.

[AnneL]

Received this review today from a friend of mine.

http://www.itwire.com/content/view/18308/53/

[AnneL]

For clairification, I am NOT The photographer whose work was stolen and used without permission.

Then who are you? You don't have anything listed in your profile and haven't really said who you are and what you do. At least Jay has been open about who is and what he does.

As far as the cost of having an attorney handle the case for you, wouldn't that be included in the damages? I've never sued anyone so I don't know for sure. However, if we did ever sue anyone for copyright infringement, the PPA has lawyers they work with who would handle it for us. It's part of their member benefits.

[SportShots]

Anne,

You might check with PPofA and find out just what lawyer services you actually get if someone steals your work. You might be surprised at how little it really is.

I photograph for living and do custom framing, mainly of photographic images. I work heavily with the 8x10 view camera for much of my work. I have had a number of gallery shows, curated some for a few museums and galleries and photoraph what I like. AP, newspaper work and sports figure in what I have done and do. AP no longer as they are cheap SOB's who want all rights for little financial gain on my part. They just aren't worth it.

I got into framing to do my own shows years ago. Then started cutting mats for friends and that led to framing their work also. As I learned I branched out a bit and started offering the services to photographers near where I lived. It continues and I enjoy it. As I said, mainly photographic works, current and historical.

I have some legal experience when much younger and dumber, finally realizing I can't stand lawyers and the bottomless pit the legal system is. If you get involved you might start to understand but with a bit of luck you won't ever have cause to be involved with them on any level.

APA, ASMP and NPPA are the organizations I have been involved with on the photographic end of things, finally realizing I don't enjoy much of the social end. I would rather be out working on my own or with a few friends than the social thing.

If PPofA works for you, enjoy it. They do have some good people and promote the business. If you are really interested APA is the place to be if higher end Advertising work is what you want.

I do not like the Orphan Works bill in any iteration. It is an invitation to theft and ready made excuses for this conduct. A thief is a thief whether of my artwork or a bank, it is only differentiated by who they hit. A museum or library is no different from Ma Barker if they are stealing the works of others.

If you want to see some of my work check out Taube Museum of Art in Minot, ND through June 6. I have the main gallery show there.

And don't get your pantyhose in a twist over the profile info, it just ain't that big a deal.

[AnneL]

Thanks for the info on yourself. I did see one image you posted on here and was very impressed. Unfortunately, Minot is a bit far for us to go, but good luck with your show.

As far as the profile, we've become a bit touchy about that on the Grumble lately after some bad experiences with trolls. We kind of like to know who we are talking to and filling out your profile helps, as does starting a thread to introduce yourself and say hi. You'll find if we know you a bit, we're much more willing to help and answer your questions.

PPA works for us since we do primarily portrait and wedding photography. I say we, because my husband is actually the photographer. I'm the retoucher, framer and general office manager of the operation. We've been in business for almost 20 years now but Gary has been photographing for almost 40 years. He started young helping his dad.

These days, I spend alot of time with a Wacom pen in my hand. It used to be a brush and dyes. Gary would like to do more view camera work but he doesn't have time for it at this point. For most stuff, we use digital.

As far as the legal help the PPA offers, I know alot of photographers who wouldn't be in business with out it. Their indemnification program has saved many a studio from the demands of an unreasonable customer. It's unbelievable what some people will try to sue you over!

They are also very active in protecting copyright. They have a network of volunteers who check places like Wal-Mart for compliance. In addition, they work with a law firm in Chicago that specializes in copyright. That's alot more than any other photographic trade group I'm aware of is doing.

I won't get my pantyhose in a twist since I hate the stuff and never wear it, but don't be suprised if others on here ask you to add more to your profile. There have been a couple of threads on here about that recently.

[SportShots]

http://www.pacaoffice.org/whatsnewnow.shtml

The above will give you a good accounting of the bill and some nice updates. Nancy Wolff is legal counsel for PACA.

After going on the site you might check out The Copyright Commandments. It is worth getting ahold of them and getting or printing a copy to post in your shop if you have much in the way of walk in business. It helps clarify copyright in simple terms and makes an excellent poster. I used to have a bunch of the posters they made and gave them to a number of photo, framing and copy businesses near where I was located. When people came in to get the work of others copied all they had to do was point to the poster on the wall and most arguing stopped.

I tried yesterday to get more info on the intro page for me and it didn't want to take it. Will try again later.

[AnneL]

There was just an update done to the Grumble software. It may be affecting your ability to change things. Check some of the threads about it. Framer or Mike may have a solution there. If not, let them know about the problem so they can fix it. If one person is having a problem, others might be too and be afraid to say anything.

[SportShots]

Below is a post by a friend on another forum. Posted here with his permission.


Brett Simison


Join Date: Dec 2006
Location: Middlebury, Vermont, United States
Posts: 96 Re: Orphaned Art Legislation - Important Update

--------------------------------------------------------------------------------

I received a response from Senator Patrick Leahy of Vermont. Thought y'all might be interested to read it.


Quote:
Dear Mr. Simison:

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.

__________________
Brett Simison
http://www.brettsimison.com/

[BUDDY]

Jay this is getting to be a very pleasant surprise , but once again I agree with your position almost entirely. I am by no means as versed as you or Ann and way out of my league with Sports... However I do own a few copyrights of Cross stitch patterns and as such I checked out the laws then fairly well. i also had a few attorneys come to our local PPFA chapter to answer questions about what was fact and Myths.

It has been a long time and things do and ahve changed , but not too much to the actual body of the LAW. IMHO most of the things that the copy right law provided registrants even back when I registered still are in force and the Orphan act ( as best I can read it with out legal advise) doen't change much except that You can claim you "TRIED" to search for the holder before reproducing an image and then if the Holder does emerge they can be limited to compensation to what is "Usual and Customary"or the prevailing price. ( question is where and by whose definition)

The cease and desist provision has ALWAYS been around and is nothing new to the OW act. The Body of works registration was around when I registered the only differance was the cost which has gone up like every thing else.

The question about Posting the ® before or actually registering the work has also been around as long as I know as is the mail a copy to yourself and Don't open it as proof of when it originated. But all theses short cuts where things you could do when the Registartion is or was pending or until you could mail off the payment and papers. It will provide proof in court but then THAT IS ALL THE COPY RIGHT is also. By this I mean ( and i checked this with their office) The Copyright office is merely a proof of date of origination and ownership . As was said here they CHECK NOTHING about duplicate works and rely entirely on the filents Honesty . So their may be several Registrants of the same exact work the only differance will be who and when . I think this may have played a big part in the case record sighted by SPORTS and why it was said to be the IMAGE of some one else.

But the Most telling thing I see here is the reply from Sen. Leahy who IMHO categorically repeats all these points and those of Jay and SPORTS.

BTW there was ( way back when I checked) a provision for the use of any Copyrighted work to be allowed to be used by Educational Institutions and others for similar purposes with the written permission of the holder of any Copyrighted material FREE of any charges This is different than LISCENES which IMO where granted for a FEE. So I don't think this has developed as a result of the OW either.

This is just my 2 cents worth . But I think if we do a search we may find the name and email addresses of a COPYRIGHT ATTORNEY that wrote for one of the trade magazines and welcomed questions. I'll bet his opinion would be very interesting to hear.

BUDDY

[SportShots]

Some things really need clarification before this happens . If not, it is just another 'full employment for mediocre lawyers' deal.

How is a diligent search defined?
How hard does the user have to look for you?
What if they claim the image they found had no title and this prevented them from finding the creator?
If you are the photographer/Artist/creator somewhere in the majority (developing) world without a website or other easily found internet contact info, but with an amazing portfolio that gets used, what rights do you really have? "They" can use your work and pay you what is 'reasonable', in many cases much less than you would license use for. Add in using your work for purposes you would never allow if approached beforehand.

What happens if the user calls, leaves a garbled message, but then never follow up? They can claim the necessary contact and effort was made because you never called to object?

What is the burden of proof?
Why does it smell as if corporations, government agencies and other large entities are being given the benefit of doubt while we are burdened with risks?

The exceptions for fair use in Copyright law need to be clarified further if it presents problems. Allowing anyone to use our work while saying "I couldn't find the creator and get permission" stinks.

There is no way to find ownership/creators in a number of instances, some purposefully, some due to error and some for other reasons. The idea that the creative efforts of anyone you cannot easily locate should be fair game by anyone stinks.

Copyright protection now lasts far longer than it has in the past. Thank Disney Corporation for this. Mickey Mouse was about to run out of Copyright protection and Disney bought Senators and Congress and got the protection extended. They would not have done it for you, your kids or I. We can't buy their time like Disney and Mickey can.

What says those who will be in charge will give the small artist/creator/photographer/whomever the time of day when a claim arises? You can steal my work now and unless I get an attorney to fight it nothing gets done. You make a small carving of Mickey Mouse and the FBI will be at your door enforcing copyright violation provisions on behalf of Disney.

This is just one more instance of money screwing the art community in favor of corporate thieves.