ORPHAN WORKS OF 2008 - The time to act is now!

The Artist Community is all abuzz. This past Friday the Orphan Works Act of 2008 (in the House of Representatives) and the Shawn Bentley Orphan Works Act of 2008 (in the Senate) were introduced. I do not need to tell you the devastating effect this would have on many creative industries. We will continue to educate the public on this issue. The letter below is the letter that our firm sent today to the Senate for the Comment Period which ended Today (they gave us alot of time). The time to act is now...calls to your congressional delegation and telling your friends is imperative. We will have more information as it becomes available.
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April 30, 2008

United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Sent Via Facsimile

RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. 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.[1] The additional provisions of this bill do not change the language of §401(a). The Act clearly states that "copyright…subsists from its creation."[2] 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.

Public Notice and Private Databases

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. The use of private databases creates two very significant problems:

1) Private Databases force individuals to become intimately familiar with search terms and remain current on any case law that would direct what constitutes a "qualifying search." The bill requires the use of search terms that require the average public to become attorneys or highly skilled researchers to know what terms to use so that a work of art can be located.

2) The cost for registration for both the US Copyright Office and any private database(s) could be substantial to most artists who create multiple works in a short time frame. As well, if an artist does not feel comfortable filing such documentation due to the burdensome requirements, he or she will need to hire an attorney which will prevent the vast majority of artists from registering copyrights.

The use of search terms and registration with the US Copyright Office and private databases takes some of our country’s greatest treasures and places them in the hands of private individuals. The Federal Government is privatizing part of a constitutional function (the protection of intellectual property). The burden placed on the individual artist is a far greater crime under this Bill than the potential that a work of art will not be able to be used because the owner is not found. The passage of this Bill would eventually mean there will only be works of the past. It will be almost impossible for the individual artist to survive and protect his or her work while making a living as an artist.

Reasonable Compensation & Relief

The majority of creative individuals do not make large sums of money. The large corporations, libraries, museums, and the like that are attempting to have this bill passed hold the position that national treasures are being lost because the creator cannot be found. This could not be further from the truth. There is a great amount of art available for use and many times the compensation asked is minimal.

The term "Reasonable Compensation"[3]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.

It is true in the realm of merchandising that you only get "one shot" at the public. The artist's right to fair compensation and further exploitation would be ruined. In this scenario, the artist would only be able to be compensation for the use and not the loss of the art's exploitation value. Even personal injury victims are allowed some type of future or speculative damages, but creators of art would not be permitted such rights.

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."[4] 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."

Thieves are not allowed to keep the stolen property, but this Bill would allow infringers to steal work and call it their own. Mistakes happen and innocent infringement occurs. However, an artist loses twice under the proposed bill. An artist loses money and future opportunity when the work is stolen. The artist loses a second time when the infringer is allowed to register the work and then claim it as "new" which creates commercial value. Once again, a criminal can't be tried twice for the same crime, but this Bill permits a victim to lose twice from a crime.

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.[5] 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" rule 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.

68% of all Americans say that this nation is in a recession.[6] The nation is at war against terrorism. Untold millions of American's are without jobs. The need for this type of Bill that would take opportunities for the average American to make a living is shocking and beyond comprehension. National Treasures are not going unused, but large corporate interests are trying to get to items that they couldn't use thus far, so that profits can be reaped. It's about the economy and not copyrights. It's time to get back to the problems facing the nation and move forward to creating a fair economy for all.

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. Our office number is (440) 398-0098.

Thank you for your consideration in this matter.
Sincerely,


Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.

TBS/cat

[1] 17 U.S.C. §401 (a) – the language clearly states "may be placed" but a requirement is not established.
[2] 17 U.S.C. §302 (a)
[3] Page 4, Line 1
[4] Page 11, Line 1
[5] Berne Convention, Article 5 (2)
[6] http://americanresearchgroup.com/economy/ - April 21, 2008 American Research Group, Inc. Poll