Strangers!

Greetings! We've been long lost strangers and we hope to rectify that!

'Tis the tradeshow season. May just returned from Surtex and are getting ready to head to the Licensing Show. I heard a wonderful comment from Ketra Oberlander from Art of Possibilities when she said: "I'll know in October if it was a good show or not." How right she is.

We're just touching base with all of you and reminding you to follow up. Right now, the most important thing is to FOLLOW UP and set your base of support in place. We've been receiving calls from some asking what to do next. There are lots of agreements that can be drafted, but it is best to put your energy on landing the deal, registering your copyrights, and making sure if you are showing any ideas...you have them protected.

Keep up the great work and sorry for being such a stranger!
Tammy

Tammy L. Browning-Smith, P.C.

Opportunities in the New Year

Happy New Year One and All!

I hope this finds you all enjoying a joyous holiday season and relaxing for a busy new 2009!

First question on most of your minds...What is going on with Orphan Works? It died when the Legislative Session ended in 2008. HOWEVER, January 8th is just around the corner. That is the start of the new Legislative Session. Rumors are swirling that new Orphan Works legislation will be forthcoming. HOWEVER, we firmly believe that the message has finally gotten to all sides of the issue that the visual arts community is not going away and needs a seat at the table. We stand ready, wiling, and able to help bring forth solutions to solving a problem, while balancing the interests of those who make their living from their work.

The Craft and Hobby Association Winter Show is quickly approaching January 24-28th in Anaheim. The focus will be on "Green" opportunities in the craft industry and an expanded Licensing and Design Section will be forthcoming. If you are interested in licensing...this is a GREAT place to be, network, find artists, find opportunities, and be part of a 30 plus Billion Dollar a year organization.

I am proud to announce that I will be speaking on International Law issues on January 25th. It promises to be full of tips and tricks for successful international relationships. Our firm is constantly fielding questions regarding the "ins and outs" of working across borders. The seminar will be from both a US perspective and an International Perspective. It promises to be full of information...that is for sure. There is so much to put in just 1 hour of time!

2:00 PM - 3:00 PM
Creating Successful International Relationships Business Seminar S114
	Speaker: Tammy Browning-Smith Room 207A The World is getting smaller. Today a business must work across international borders to succeed, but often face complicated legal and communication issues to make these deals a reality. Tammy Browning-Smith works extensively with international relationships, she can break it down and show you how! This seminar, for both US and International Attendees, will focus on issues that international business deals must consider to make their relationship a success, including: • Different Laws, Taxes, and Customs across the Globe • Protecting Your Ideas and Products across borders • Hints & Helps for Greater Profitability Plus…all attendees will leave with an International Resource Guide for further research.

The second item that we will be participating in is a "consulting series." This is basically a one on one with me for a 1/2 hr. The sessions will be for educational purposes only, but will give participants an idea of where to go and what type of resources they may need to look for. There are several different professionals sharing their time...it promises to be great!

I speak throughout the year and this is one of my most enjoyable and busiest venues. CHA has made it possible to attend many different seminars at a reasonable prices and have a special express pass for a fixed fee ($50???) that allows you to attend many different seminars. It is a GREAT deal.

Here's to a Create New Year (and hopefully more posts from me!)

Create with your Heart and Your Head!
Tammy

URGENT ORPHAN WORKS UPDATE!!!

Greetings All!

I know it has been a while, but we thought we were done with Orphan Works for the session and then we would get to come to the table to create a working solution. I have to report that this is trying to literally be passed in the middle of the night. The Senate passed a version of Orphan Works and now the House is trying to do the same.

PLEASE CONTACT YOUR CONGRESSPERSON NOW!
TELL THEM NOT TO ADOPT S.2913 OR HR 5889
They are trying to move Orphan Works tonight Oct 2 or tomorrow morning!!!

http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321
Please help us stop Senate Bill 2913 and House Bill 5889 by CONTACTING your Members of CONGRESS and telling them to vote NO.
Call Congress For Free: 1- 800-828-0498.
For Background info on Orphan Works Legislation:
http://www.artistsfoundation.org/orphan.html

Orphan Works...Where Does It Stand?!

The Procedure for Copyright Registration Now (First Line) and Under the Proposed Orphan Works Legislation (Second Line & Third Line for Collections)

Happy 4Th of July for All My American Friends!

First and foremost...thank you for all of your support and kind words regarding my writings opposing Orphan Works. The Orphan Works Legislation is still active and our opposition needs to be STRONG.

Many of you have asked what you can do now....CALL YOUR CONGRESSPERSON AND SENATOR!

Here's the directions (with a BIG thank you to Dena)

1 ) Telephone your members of Congress at the U.S. Capitol Switchboard at (202)224-3121 and ask them to

SENATE:

Please place a hold on the bill S. 2913 – and open it up for public debate. This bill will devastate artists small business owners across the state and country. (You may also use the form letter and rebuttal letter as speaking points.)

HOUSE:

Please VOTE NO on bill H.R. 5889 when it comes for a vote. It has rocketed through the Senate and there is a fear it will be slipped through before the end of the legislative calendar (which may be less than 30 days!). This bill will devastate artists small business owners across the state and country. You may also use the form letter and rebuttal letter as speaking points.

The key is to not let up on the pressure. Many of you have asked how this will affect the average person. One of my biggest problems with these bills have been the procedural HAVOC it would create. It would clearly take the process of Copyright Registration out of the hands of the average citizen and make it an "attorney only" process. You will see below a chart that was created regarding the differences.

**There is an important note with this chart. There is a HOPE that someday there would be a visually search database, but the technology is at least 10 years away according to most experts. Therefore, key search words would still need to be employed.***

We must not loose momentum. We are making an difference. The key is to have this stopped now and for good. There are several options and alternatives and I'll be highlighting those. Sorry to keep you waiting so long for another blog, duty called all over the country!

Create with Your Heart and Your Head!
Tammy L. Browning-Smith

Orphan Works and Washington DC

Greetings All!

For two days I had the chance to truly be part of the political process, hitting the "Hill" to advocate against the Orphan Works Act. It was an amazing adventure and it brought home two things:

1) YOU MUST not only write but call your Congressperson and Senator. Many Senators and Congresspersons state that more than once these past weeks that our letters have been the "winner" when it comes to the most regarding an issue. This correspondence made it easier for us to get appointments and have people take note. Many on the Hill believe that this is not a controversial issue and that it will not harm anyone - your correspondence makes a difference!

2) Tell everyone you know to write and call. The other suggestion is to also go to your Senator and Congressperson's website and email comments directly off the form they provide. They do get those MUCH quicker. REMEMBER...the key is to WRITE and CALL!

Here is the example I sent and I used the "Small Business" Category. Please use your own words. The key is the legitimate numbers of contacts! The Senate has fast tracked this Bill and we must make our voice heard NOW! :

Please vote no on the Copyright Reform/Orphan Works Act. It would devastate small business for many artisans of all type in Ohio. There are ways in expanding Fair Use or creating stronger definitions in the Bill that the true orphans can be used. This bill with its provisions for searches, notices, and the like make it very difficult for a small non profit, individual and the like to use an Orphan and isn't that who this bill is supposed to help?!
Thank you for your time on this important subject!

I met some outstanding businesspersons and artists these past two days. I will continue to share their stories as it is their livelihood that will be devastated. These bills are truly Copyright Reform and do not address Orphan Works in any way. I can only hope that the creative communities and non profits can come together to work on a solution that will help create a Bill that addresses concerns and that does not include Registries that would give billions to private, special interests.

Keep on fighting the good fight. There are several thousand hits a day to this website, if you all acted...we could stop this. The key is to act in simple ways to make a huge impact!

We Shall Overcome!
Tammy L. Browning-Smith
(One Very Tired Attorney Who Met with 14 Offices in 1 1/2 days!)

The Fight Against the Devastating Consequences to the Orphan Works Act Continues

Greetings!

The Grass Roots Effort to stop the Orphan Works bills is going full steam ahead as many are beginning to truly understand the devastating effect these bills would have on the visual arts.  

Please check out http://www.owoh.org for the latest information, schedule of information, and the like.  

Your emails, calls and postcards ARE making a difference.  Please keep them up and don't forget to education yourself on the bills as well.  Be prepared to say why you oppose this and how it will affect your business.  Don't just take our word for it...

Keep fighting the good fight!

Tammy 

Orphan Works - House of Representatives

Greetings!

Here is the letter that I sent to the House of Representatives. NOTE - the letter to the House is different than the Senate because the proposed bill is different. The House Bill does not have a requirement for a Private Database. I have been surprised in my dealings with the members of the committee from both houses. The real issue is education. Please make sure you read the Bills and can answer questions (i.e. I don't like XYZ and this is why). Many congresspersons are trying to get their heads around this and understand it. You do have permission to cross post this. It is similar to the Senate letter, but different as well! Keep fighting the good fight and we welcome any questions!

PS - We are SERIOUSLY considering a "fly in" where artists would come to the capital and meet with the delegations in their states in groups of 4 ish. Start thinking about it, we still need to formulate this a little more!***

May 6, 2008

RE: Orphan Works Act of 2008 – H. R. 5889
Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. THIS IS A SERIOUS BILL WITH SERIOUS ECONOMIC IMPACT. Our law firm focuses extensively on the creative arts industries and represents both manufacturers and individuals through counseling, registration and litigation. After a thorough review of the proposed Bill, the following comments are offered from a legal professional who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976
Artists relied on the provisions of the Copyright Act of 1976 that did not require them to place the copyright notice on their work in order for them to own their copyright. The additional provisions of this bill do not change the language of §401(a). The Act clearly states that "copyright…subsists from its creation." The Bill does not state that this language will be changed to "copyright…subsists from its creation provided that you register, use the correct search terms, and can pay for it." This Bill puts a large requirement on individuals to register and use large amounts of financial resources to protect an artistic work.

Databases and Reasonable Search
Copyright registration continues to be the most accessible intellectual property protection available to the public. The fees are minimal and the forms understandable so that an average person could complete the task with relative ease. The proposed bill changes that premise. It is my understanding that the House Bill does not have a Private Database provision. While that is applauded, it still creates a terrible issue regarding the "reasonable search" requirements. Google databases and the internet are not sufficient nor are Artists required to register with them. Copyright Registrants will need to use carefully selected terms in order to insure that a work is able to be found. The expertise required will force registrants to seek legal counsel and other professionals at substantial costs in order to obtain protection. This makes a "user friendly" system inaccessible to many and then will create orphans because many will no longer be able to register their works..
Millions of artists relied on the provisions of the Copyright Act of 1976 that did not require them to use a copyright statement. The Artists who followed that law are now being punished and the new provisions in essence create an Ex Post Facto law that punishes the Artists for following a law in the first place. This is outrageous.

Reasonable Compensation & Relief
The majority of creative individuals do not make large sums of money.
The term "Reasonable Compensation" opens the door for a significant amount of litigation. Highly qualified individuals disagree on what "reasonable compensation" would be on any given license. Daily our firm works with licenses and knows the complexity that goes into them. It is impossible to determine the value of a license without having the license actually go to full term. Allowing an infringer to only pay "reasonable compensation" would require an artist to wait for compensation and then would limit his or her abilities to exploit the art, as the art is already in use in public. For example, an infringing use of artwork on textiles would prevent the rightful owner from entering into a potentially far more profitable exclusive licensing arrangement with a manufacturer of his/her choice.
Litigation is expensive. Many artists are only able to bring such cases forward because of contingency arrangements made with a law firm. This type of litigation has not over burdened the court system nor has it been shown to be abused. This type of litigation permits an injured person his or her day in court. This Bill would remove such an opportunity. Not only would it remove any financial incentive for attorneys and artists to work together, it would also make it almost impossible to bring a case forward because of the heavy financial requirements placed on the artist. The financial (and technical) requirements of this Bill truly assume that an artist is "guilty of failing to comply until proven innocent" instead of the reverse.

Works Based on the Infringed Art
The most appalling and morally outrageous part of this Bill pertains to the registration of new works created from the infringed upon work and the prohibition of the injunctive relief if a work"…. integrates the infringed work with a significant amount of the infringer's original expression." The US Courts have never adopted a bright line test in regards to the changes of an original work in order for the new work not to be an infringer of the old. This bill suggests that there is a rule for changing an existing work and making it a new work, yet it fails to state the exact rule.
Failing to specify a rule creates legal havoc. Not only does it create legal havoc, it causes substantial confusion to the public and requires significant money to be spent in order for a judicial body to determine what is a "significant amount."

International Implications
The global marketplace will become even more difficult to navigate because of this bill. International Artists’ rights will be greatly compromised here in the US. This invites sanctions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Furthermore, if a manufacturer were to rely on the US "Safe Harbor" for orphan works and ship the merchandising containing an infringing work to a Berne Convention country, the manufacturer could face stiff penalties for infringement as the Berne Convention does not recognize such a term as "orphan works" and states that copyright ownership is free from formality. The Berne Convention gives US Citizens the rights to protect their work in other countries, but this bill would mean that US Citizens may not be able to protect his or her own rights in their homeland if "formalities" were not followed.

Everyday Application
This Bill will take the copyright registration and enforcement out of the hands of the individual artists and place them squarely in attorneys’ hands. It establishes systems to determine what is fair and what is reasonable in a field where individual facts and situations dictate the outcome, thus making "bright line" rules burdensome and unfair. The windfall for the legal profession will come at the cost of untold artists whose works will be free for the taking. Citizens will no longer be able to register their own copyrights without significant expertise or expense, and in fact this Bill essentially states that copyright registration is not sufficient to protect one’s work. This Bill takes a piece of the government out of the citizens' hands and places it in the hands of a select few.
Furthermore, the Bill gives persons the opportunity to register their use of an Orphan Work, but it does not require any visual if available. The registry does not give a person full absolution and it is very possible that a company will open itself to liability if it cannot truly prove a "reasonable search" and that it complied with all the technicalities of the requirements. A cottage industry of attorneys tolling for opportunities will surely develop.
Useful Articles
The most difficult part of the Bill that will truly create the most legal difficulties comes to the term "useful articles." Useful Articles share such a broad definition that it could be a nightmare. The definition from 17 U.S.C. §101 states:
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.
A picture on a wall portrays the appearance of the article, but it also decorates a room. Fabric is argued to be a useful article, yet there are functions that it is not a useful article and a mere decoration. The House of Representatives reliance of the definition used in the current law demonstrates a lack of understanding of the impact that this Bill will have and the legal havoc that it will create.
There are many emotional arguments against this Bill, but there are even greater procedural and legal issues that makes this Bill impossible for the average person to use.

Economic Impact
A prime example of an impact of this Bill that has not been considered is tourism. Rural Art Communities, Amish Crafts persons, and Artisan Communities will be dramatically affected by this. Most of these communities contain unsophisticated creators that bring about substantial tourism dollars to many economies. At this time, the only manner that many of these works are protected are under the current Copyright Law. Many of these works would be made orphans and subject to mass production. The charm, uniqueness and even financial incentives for creating unique, originals will be gone. The items created by these special creators would readily be available for the mass market without a cost effective and reasonable way for these creators to seek compensation.
Please know that our firm is willing to answer any questions that you may have or provide testimony on this matter at any time. We are a law firm that handles these issues on a daily basis. Our representation is diverse including famous brands, famous artists, manufacturers and those waiting to be discovered. I personally hold a Juris Doctor and a Master of Laws in Intellectual Property. We live copyright law on a daily basis and would see first hand what consequences this Bill would have on both sides of this issue.
Thank you for your consideration in this matter.
Sincerely,
Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.
TBS/cat