Will Terry - Children's Book Illustrator: July 2015

I highly urge you to watch this video interview I recorded with Brad Holland a few days ago. We talk about new proposed legislation that revitalizes the failed "Orphan Works" bill.

After reaching 70 thousand views we awakened the few who want to see this horrible legislation passed. Some of them wrote articles attacking the content of the video that's being passed around the internet to confuse artists.

Let me be very clear in responding to this attack article: http://graphicpolicy.com/2015/07/20/dont-believe-the-hyperbole-theres-no-orphan-works-law-before-congress/

I helped Brad back in the late 90's set up the first Icon conference in Santa Fe; so when Glenda Rogers proposed the idea of a video with me to Brad, to get the word out, it was natural for us to work together again. I told him I really didn't know anything about it but would love to interview him on my youtube channel. He told me not to worry - that if I got anything wrong he would correct me. I would in essence play the uneducated interviewer and he would be the expert that he is. In the video you'll notice that I speak about 1% of the time while Brad speaks about 99% of the time. I made statements like, "So, in this new bill..." and Brad corrected me saying, "well, it's not a bill yet..."

In the attack article written by "Brett" (doesn't give his last name) he only attacks the incorrect statements I made - that Brad corrected. He goes on and on about how the video says "it's a bill - don't believe the video it's not a bill" In other words - he ignored all of the accurate information that Brad the expert gave - the entire content of the video - and attacked the guy asking questions and making a few inaccurate statements....that were corrected in the video by the expert.

There are forces at work that really want to push this through and they are willing to use any means necessary to confuse artists into doing nothing! Please send a letter to the copyright office either today or tomorrow as the deadline is on Thursday July 23rd.

All of the links you need to send letters or get more information are at the bottom of the video - in the description on youtube.

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And here is Brad Holland's response to that attack article:

I had a deadline yesterday and didn't see this guy's post until late in the evening. I'm afraid it's history repeating itself.

Back in 2008, we got the news that Congress was planning to release an Orphan Works bill that would be fast-tracked for swift passage. So we put out an advance warning.

Someone posted an attack on the Internet, saying that there was no bill and that we were just trying to scare people. We were right, of course, as events proved: the bill came out a few days later and it said what we said it would say.

If we hadn't gotten a jump on it, they might have passed it before we could alert artists.

I'm afraid we'll be proved right again.

There is no bill yet, as I said on Will's podcast. But the Copyright Office has given Congress its recommendations for one.The heart of its report is a resurrection of 2008's failed Orphan Works Act. That bill called for a return to copyright registration for every picture an artist wished to retain the rights to. Of course, registration would not actually protect your work – an infringer could still infringe you. But by registering it, you would at least preserve your right to sue in US federal court – if you could afford to.

Unregistered pictures would still be yours and in theory, clients would still have to get your permission to use them. But whenever an infringer concluded that he had made a "reasonably diligent" but unsuccessful effort to find you, then he could infringe your work as "orphaned." In that event, he would have to pay you only if you caught him, tracked him down and agreed to accept whatever money he was willing or able to pay you.

The Copyright Office has even suggested that there should be an orphaned symbol (similar to a © mark) placed on each newly-orphaned image. That would signal its availability as free art to other infringers. Some have called this a "come-and-get-it" symbol.

Our critic says the 2008 bill passed the Senate – which is true – so I guess the new Congress shouldn't have to waste time debating it again, right? He's repeating the account in the 2015 Copyright Office Report. But unfortunately, that account doesn't exactly tell the whole truth:

“The limitation on liability approach was thoroughly analyzed and unanimously adopted by the Senate in 2008, and in the [Copyright] Office’s view it best balances the benefits and burdens of interested parties." http://copyright.gov/orphan/reports/orphan-works2015.pdf

"[T]horoughly analyzed and unanimously adopted…"Let's take a look at that:

The Senate conducted only one hearing on orphan works legislation, April 6, 2006. It lasted only an hour and a half and had only 6 witnesses. I know, because I was one of them. My Senate testimony is here: http://www.judiciary.senate.gov/.../Holland%20Testimony

There was only one Senator present throughout the entire session: Chairman Hatch. The Ranking Member came in and out, mostly taking photographs. In 2008 the Senate held no orphan works hearings at all.

The Senate passed S.2913, The Shawn Bentley Orphan Works Act Sept. 26, 2008 by a controversial backroom maneuver known as hotlining. This is a tactic that permits Senators to pass certain legislation "with little or no public debate." Critics charge that it allows them to sign off on legislation " neither they nor their staff have ever read."

Here's how the Capitol Hill newspaper Roll Call described the tactic:

"In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object — in some cases as little as 15 minutes. If no objection is registered, the bill is passed." (Emphasis added) – "'Hotlined' Bills Spark Concern, Roll Call, Sept 17, 2007 http://www.rollcall.com/issues/53_27/-20011-1.html

In 2008 the subcommittee chairs tried to hotline their bill twice. But each time we contacted concerned senators and the bill was put on hold. The third time they hotlined it in the evening – after hours – the night of the first televised presidential debate between Obama and McCain.

With Senate offices closed, we got nothing but out-of-office recordings, and even the legislative aides we could reach by Blackberry told us they hadn't been given enough time to read the bill.

As we wrote at the time: What better way to pass a bill that was written in secret than to pass it while nobody's looking. http://ipaorphanworks.blogspot.com/.../orphan-works...

The Senate bill died October 3, 2008 when the House failed to pass a companion bill.

In writing to the Copyright Office, it's probably best to refer to "orphan works proposals" instead of orphan works "bill."

But remember: the Office says there are several other visual arts issues that are "ripe" for legislation: copyright small claims, resale royalties, and other forms of secondary licensing which most artists have never heard of. These are all included in their recommendations to Congress.

For instructions and sample letters you can go here: http://myemail.constantcontact.com/Artists-Alert--The-Return-of-Orphan-Works-Part-1.html?soid=1102063090742&aid=3vozerBiCPE And thanks to everyone here for your responses yesterday. You've been amazing!