This is a lengthy, small print article that takes a few minutes to read, but it's so important!!!
The article describes a piece of legislation before Congress -- ORPHAN WORKS legislation -- that will, if passed, make it necessary for artists to register EVERY work (pattern, painting, poem), FOR A FEE, in order to protect that work from what is essentially theft.
The long and short of it is that right now, copyright is automatically granted, whether you register your work or not. The ORPHAN WORKS legislation before Congress will allow anyone to use your unregistered (or "orphaned") work without giving you credit or royalty payments. That means anything you've posted here, on flickr, on your blog, on DeviantArt, or on another forum; at shutterfly or snapshots or picture trail; or anywhere else on the web; essentially becomes "public domain" and your rights as owner are eradicated.
I haven't done any research on this -- this article was shared at my art card site by a fine artist who's "in the know" -- but if this is true, it's a nasty, complicated, and expensive shift in how things have been done to date.
GET ON ORPHAN WORKS E-MAIL LIST
To be notified of the latest information on the Orphan Works bill and when to contact your legislators, send an e-mail here:
and ask to be added to the Orphan Works list.
If, just to pose an example, it will cost $5 per work to register, that means I would have had to spend over $500 in the last year alone, just to register my web-posted artist trading cards, to protect them. And I swap them for free, other than my out of pocket cost for postage stamps. I'd never be able to afford to register all my cards, so they'd either go unseen (except by their recipients), or ATC trading would be my first hobby to go after this bill is passed. Heaven help us.
Imagine how much less fun and informative and gorgeous and enriched our own Teddy Talk forum would be, without photographs -- because none of us could afford to post those photographs, for fear they'd be turned into an ad for "Teddy Beer", the newest high-octane alcoholic beverage for the hairiest of men. And so on. Without registration, our images would be considered "orphaned" and could be used by, say, tobacco companies; [INVALID] producers; and the like; without accountability to them, or compensation or credit to us.
It's a mad, mad world.
Who came up with this dumba** idea anyway???
It is interesting, and I'm still reading myself. The problem, as I see it, is that while the bill purports to do one thing, in reality, it may serve less as a "functional" bill than as a loophole which allows mass abuse. The biggest problem as I've been able to determine so far is that even if foul play is determined, there are limits on compensation, or compensation is disalllowed entirely.
It would be a crying shame for a photographer, for instance, to have an image stolen and used to advertise, say, cigarettes, without permission. The bigger shame icing that cake is that if this bill or one like it passes, the photograper isn't entitled to credit or royalties. What about the photographer who is deeply opposed to cigarette use? What about the impact on his/her career? And the folks who find and use the "orphaned work" -- remember, all that means is that they could not find the copyright owner to ask permission -- have maybe reached 8 MILLION consumers with that photographer's image. And maybe have made $20 MILLION dollars using her image (without permission) to advertise THEIR product. And she saw not one whit of cash or credit for it.
Even more interesting... this exact scenario has actually happened. Read here about the true story of "The Blue Girl": http://www.illustratorspartnership.org/ … term=00235
And guess what? The photographer of "The Blue Girl" sued and won a settlement against the tobacco company that essentially stole her image. That won't be possible once the Orphan Works legislation goes into effect, because her remedies will be limited. The huge firm that found and used her image without permission claimed they looked for her, but didn't find her, and thus concluded her image was "orphaned." For now, that doesn't work as an excuse and copyright law allows abused parties certain remedies. In the future, if the Orphan Works bill passes, these remedies are lost.
I'm not getting all radical on this issue, but if there's even a hint of truth to the abuses people are suggesting might be possible, I think it's important that all artists of any ilk get informed.
I can some horrible worldwide implication in this legislation and I think we should have a close look . The writer mentions Europe has similar legislation tabled and I think if the USA gets away with it other governments will be pressured to follow suit.
The internet has made the world much smaller so what's to stop them choosing and Australians or Sth Africans work. Its been hard to sue across counties as it is and this legislation will make it impossible. Everyone should be opposing this.
I for one will see if there is any pressure to be brought to bear on our federal pollies here.
Here's another, less emotional take on the ORPHAN WORKS concept.
The issues are complicated and I'm not done reading thru them all, such that I can come to my own conclusions. All I know, at this point, is that some of the changes being proposed in this legislation have the possibility of becoming loopholes allowing the abuse of artist rights. Whether stated somewhat hysterically (the first link I posted) in a rather doom-and-gloom kind of way, or with greater calm and control (the link just above), that possible loophole is something I'd rather avoid, that I think is bad for artists.
Read and decide for yourself!! And most important, stay informed.
Leads us right back to who controls the creative thoughts. Originally the US was founded on people who did not want King George to own their creative thoughts. Yes, that means if someone had invented something way back when, King George was the automatic owner of said invention How many creative ideas and thoughts do you think would happen under that type of regime??
As artists we DO need to stand up to this and protect our rights! Hubby couldn't understand why I was so miffed over the $5 as he said, you'd still need the deep money bags to protect it, to prove it was your copywrite to begin with. However, if the fundamental shift happens, I can easily see all the problems this could let loose.
When I read the original post last night, I went to the link that Shelli provided and read it in it's entirety, including all of the comments posted. Bleary-eyed, I finally went to bed, and got up early this morning to do my own research.
I started by looking up the original bill, which was introduced by Rep. Lamar Smith of Texas. (Go figure, since I'm from Texas!) The original bill is HR 6052 and is called the Copyright Modernization Act of 2006. The original bill is about 100 pages long and is online for anyone to be able to view.
I called Rep. Smith's office in Austin this morning and inquired about the bill. They referred me to his Washington office, which I called. The information I was given was that the bill was introduced into the 109th Congress on September 12 of 2006 as the Copyright Modification Act and was referred to the House Committee on Judiciary Issues. It never even made it to the floor and the bill effectively "died". To their knowledge, this is a "dead issue" and Rep. Smith is not going to try to re-introduce it. This does not mean that someone else can't re-introduce it.
They did turn my request for information as to whether the bill was going to be re-introduced over to a Legislative aide. They took my phone number and said they would look into it and return my call. I suspect it may take a day or two for a return call. I made the same call for information to the office of Howard Berman, the representative from California, who is the chairman of the sub-committee regarding the bill.
I then called the Washington office of my own representative - Lloyd Doggett. They took down all of the information, and will give it to one of their Legislative aides to research. They indicated it would take about 2 weeks to get back to me. Lloyd Doggett will be here in town on Saturday, and will be taking questions from the public. I have a show the same day, but my husband is going to see him, and I've asked him to inquire about the Orphan Works Bill.
On the internet, you can look up any and all bills being introduced. You can look them up by keywords or the bill number. Call your representatives directly and ask for them to research it. If they don't get back to you, call them again.
I do have some concerns about this particular bill (if it gets re-introduced), but for now am relying on having a trademark issued by the Federal Government to protect my name and work. I'm not sure that there is much that can trump a trademark - including this particular bill. If it turns out that I'm incorrect, you will probably see a huge uprising from everyone that has paid for a trademark and worked their buns off to protect it.
Wow, Luann - thank you so much for all the work/research you did on this bill. The "dead issue" reply is somewhat reassuring, but guess we can't breath a sigh of relief until we know for sure it won't be re-introduced.
I certainly appreciate yours and Jeff's attempts to get answers as to whether we will have to worry about this issue in the future. Jeff, good luck with Mr. Doggett. Thanks again to you both.
Yay, Luann, for doing some serious homework! You rock! Thanks for the very detailed report and your legwork on this issue. I'll be curious to hear where this ends up, since most of what I've been reading is interesting and emotional and reactive and intellectual and also, kinda vague and speculative at the same time. It seems like this legislation has reared up more than once and threatens to become active again, hence the current hysteria over it. Or at least, that's what my little bit of browsing has indicated.
I do know a trademark is a different animal entirely than a copyrighted piece. The orphan works legislation would apply mostly to images (photos, patterns, logos, designs), considered orphaned, and their use by third parties to whom they do not belong, which most artists believe constitutes theft, especially if no real good faith effort to locate the copyright owner ever actually takes place. I think that's where the hysteria I'm reading all over the web is coming from. Artists -- many of them photographers and folks who post images to the web -- are really afraid they'll lose their livlihood if huge corporations, with bottomless, deep pockets, start using their images without granting credit or royalties, and then if/when caught, hide behind the excuse that "We tried!!" when asked, "Did you seek out permission to use?" Plus, the legislation has in the past proposed a very insubstantial cap on remedies to the injured party -- the photographer. As I mentioned above, what good would it do the photographer to receive $200 for the theft of his/her image, if the company that stole and used it earned a $2 million profit from advertisements featuring that photographer's work. And so on.
A trademark such as "LuLuBears", especially one that's been officially registered (don't know if yours has been, I'm just using you as an example) is a different animal. From Wikipedia:
A trademark or trade mark (represented by the symbol ™) ... is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements
So, for instance, this is a trademark. It conveys instantly the entire branding concept and product offerings we associate with Kelloggs (here in America, anyway). This is protected, if registered, by trademark law, and does not relate to the Orphan Works legislation, as I understand it.:
But this image, below, which isn't trademarked, is copyrighted and belongs to me. I own all rights and I reserve all rights to the use of this image. If what I'm reading becomes real and the worst case scenario plays out, it's possible that Orphan Works legislation would allow a company to use my image to advertise a product without my permission, by simply saying, "Well, we looked for the owner, but couldn't find her. And the image wasn't registered, so we felt okay to proceed." If this image was used to advertise, for example, "Alice Does Dallas," Vivid's newest [INVALID] flick, I think my reputation as a squeaky clean (more or less) bearmaker might take a bit of a hit, and I'd certainly be less than thrilled with my art being used in such a way. And if my work were to be used in that way, I'd for sure want to see some cashflow in return for my massive discomfort and possible loss of clientele!!:
Anyway... I pretty much know only half of what I'm talking about here, and didn't remotely mean to stir hysteria of my own by posting about this legislation. Rather, I just wanted people out there in the bear world, fellow artistic types who care about such things, to be AWARE that these issues are in circulation. I, for one, had never heard of Orphan Works legislation prior to yesterday when it popped up right under my nose on another forum. I was a bit abashed at my utter un-inform-ed-ness, to be honest. And if, in fact, such legislation goes live again, in the near or distant future, I just thought it would be nice for all of us to know about it and be in the loop, so we could have a voice, individually and collectively.
At this point, as I said, I'm neither freaking out nor entirely soothed. I haven't read everything and I don't know enough to be entirely informed. I'm just... cautious, and learning. Watching. Thinking.
Luann, let us know what you hear back, and bless you for your thoroughness and gumption. Seriously.
And, also seriously... did you actually read that 100 page document???
I bow to you.
Hey! No hysteria here. I try to do as much research as possible when it's something that might affect me and/or the bear world as I know it. Since the author of the bill happens to be from Texas, and I knew he had an office nearby, I just decided to give them a call. That's really how it all started.
Yes - I did read the entire bill. Lots of it is gobblegook, but you can get the gist of the bill if you suffer through it. Like most bills that are presented, I think there is always a loophole of some kind attached, and someone will be adversely affected. I think we would all be wise to keep an eye on this particular one, because it could affect us all if it goes through without amendments.
I do, in fact, own the trademark "Lulu Bears" and I do actively protect it. If I don't actively protect it, I can lose the right to use it. My trademark basically protects my trade name and the goods I produce under the trade name, just as Kellog's products are protected.
The following was taken directly from my paperwork that I have in my trademark file:
"A Trademark is either a word, a phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others."
"A copyright protects an original artistic or literary work; a patent protects an invention".
Basically, my trademarks protects all goods and/or services that I provide under the name of Lulu Bears. I copyright artwork as well, but suppose I'm also protected by the trademark should the copyright fail for some reason.
While you are certainly offered more protection with a trademark, it is not a venture that I would lightly advise everyone to undertake. It involves time, money, attorneys (even though you can do it yourself) and follow-up, along with additional fees to keep the mark registered. You have to be able to provide continuous use of the trademark if it is contested. It seems to be as tangled an issue as the Orphan Works issue.
I'm assuming the Mr. Doggett will give a polite answer and promise to "look into it and get back to us", because he probably won't know anything about it off the top of his head. I'll keep you posted.
Oh, eek! I didn't mean to imply YOU were hysterical, Luann. Gosh, no. Just the stuff I've been browsing on the web. Your response was totally reasoned.
I really appreciate, too, the further explanation on trademarks since my own knowledge is based on definitions from the web and not remotely on personal experience or legal advice. Thanks for that!
I've been writing more to the "Teddy Talk readership" than responding to any one post in particular, because I know that as little as I know, it's more than some, and less than others -- like you!!
So sorry if my words came out differently than they were intended! Basically, I just want to help artists be informed so they can protect themselves. Same as you!
And it's actually nice to know someone personally who's suffered the trademark process. I know now who to approach if/when the issue comes up for me...
Shelli - you are kidding right? Me? Hysterical? Me? Never. I was referring to the "hysteria" in general over the whole issue by others not even on TT.
Actually, sometimes my kids think I'm hysterical, but now that I think about it, I'm not sure if they really mean in it a good way. Hmmm...do you think I should call and ask one of them? THEN, especially my daughter would think I was hysterical. (She also thinks that when I try to work on my own website, but that's another story.) She did however, teach me the difference between "minimize" and "vaporize" when I was learning to use the computer. NEVER touch the red x in the corner of the screen until you are absolutely sure!
She did however, teach me the difference between "minimize" and "vaporize" when I was learning to use the computer. NEVER touch the red x in the corner of the screen until you are absolutely sure!
Ha! And... ouch! Been there, done that. Not a pretty picture!!