Tuesday, July 21, 2015

Your Copyrights Are About To Change

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!

22 comments:

  1. I haven't watched your video yet (I haven't had an hour free to listen) but when your initial post showed up in my news feed I did do some reading and digging. All the legalese is terribly confusing to me, but (as someone in Brett's article also said) I'd rather write a letter to be safe. Writing a letter to protect something I'm passionate about really isn't too much to ask, right? Thanks for all the posts, Will.

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    1. That's right - but they opposition is desperately trying to stop the letters because it will work! :)

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  2. Do you have the sample letters available. I am ready to write mine and need some guidance. Thank you for all that you are doing for us creatives

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    1. There's a link to sample letters under the youtube video description - you have to view it on youtube - just scroll down and look through the links :)

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  3. It's one thing to inform artists and authors about the meaning of "orphan works" and the copyright office's work to investigate and look at solutions for the orphan works problem, and to encourage their participation in that conversation. It's another thing altogether to make alarmist predictions that get people riled up for no reason, such as, "Everything you know about copyright is about to change." That statement, on its face, is pure nonsense. Just parse it, for Christ's sake.

    There is no bill, and you admit that, except when you are promoting the claim that there is currently a bill, which there isn't! And a theoretical bill to address orphan works would in no way change "everything you know about copyright." That's ridiculous, unless the only thing you know about copyright is about orphan works, which makes no sense.

    So what's your angle? Why are you spreading horseshit?

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    1. Nathan - I'm going to cut you a break because I realize that you never watched the video - if you had you would know that Brad corrected my assumption that it was a bill. He says very clearly that it's indeed not a Bill. So either you're lazy - or you're another hack trying to spread disinformation. Either way I invite you to continue discourse here because while it's easy for me and others to point out your fallacies because we're dealing with truth - you will have a much harder time wielding the sword of half truths and lies. Mic is open.

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    2. Nathan- What I gathered from your comment was: "stop getting worked up." You simply criticized Will Terry's video title, and while you are certainly free to do so, that is far from a substantial argument.

      I have a question for you: why are you more concerned that we have calm video titles and simply "inform" and "encourage participation" rather than saying: "Wow! I'm so glad we're getting the word out, because possible law changes that make it even harder for artists to live on their art sounds like something we should be sharing! I will look into it!"

      Maybe after the dust settles you can offer your advice on video titles, but right now, men like Will Terry and Brad Holland are trying to protect the livelihoods of workers in an entire industry.

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  4. Brett's tactic isn't unique. I've seen it used on other legislative issues before and after the issue became a bill. It's like saying, "Nothing to see here, move along," when in fact there IS something that needs to be looked at. By the time proposed law changes become a bill, the opportunity to have as much say in it can be lost. His blog post is also a great example of how a half truth can be more dangerous than a lie, since the half truth is that it's not a bill, and the rest of the story is that no one said it was but it's being proposed. Americans need to know how important it is to be aware of what's going on. When someone says 'nothing to see here,' there usually is.

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  5. Quite astute Carey and Cindy. Nathan and Brett are just mindlessly reading and following pages from "Rules for Radicals" by Alinsky. There's a lot of money at stake here and the mayhem has begun - it's predictable.

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    1. Shouldn't there be over a million people talking about this by now that the letter deadline is about two days away? It feels like nothing is happening.

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    2. I think a lot has happened from what I've been hearing - still - it's not easy to get people to write and submit a letter. I would assume the numbers to be quite low compared to the traffic this issue has received. People have had it too good because we used to be a nation of fighters...we've been too successful and I dare say we might have to lose a lot in order to learn what it means to fight for something again...

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  6. Hello! I think the 'myemail' link at the bottom of your article is broken? Is this the correct one? http://myemail.constantcontact.com/Artists-Alert--The-Return-of-Orphan-Works-Part-1.html?soid=1102063090742&aid=3vozerBiCPE

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  7. From what I gathered about the original Orphan Works debacle, this was a US Bill intended to trample the rights of artists and creators Worldwide and overrule International Copyright Laws, not just US Artists. I cannot understand why this isn't being debated on an International stage

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    1. People are apathetic and lazy. I think most are happy with their Starbucks coffee, wifi, and the ability to chat with friends on many different platforms...I don't think most people are willing to take time to make a difference...but most probably just don't even know about it.

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    2. Sadly, that's true on most issues. A British guy once told my husband that the problem with Americans is we're "too busy to be involved in our own lives,' meaning most people can't or won't spare the time to really learn about issues and make educated decisions. They look for headlines to tell them everything and make up their minds for them. I can understand that few would WANT to have read the 200+ page report on orphan works that the US Copyright Office issued this June, but that does not make it a "rumor" as a number of articles have claimed. Like this one, and this is now a group I can add to my mental list of astroturf orgs I guess: http://copyrightalliance.org/2015/07/visual_artists_recent_orphan_works_rumors_are_not_true#.VbFtw_lVhBc

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  8. Hi Will, Thank you, thank you for creating and posting the interview with Brad Holland. I was with Brad, Cynthia Turner and the rest of the small group of artists tromping through Senator's and House of Representative's offices in Washington, DC in 2008. It was a grueling several days, but I have rarely been as satisfied as I was when I saw enormous postal carts throughout the Congressional hallways, full of artist's letters, tearsheets, posters, etc. Over 165,000 pieces of mail deluged the elected officials offices and led to the defeat of Orphan Works Legislation. The specter of more legislation is on the horizon, and every step of this process of communicating with the Copyright Office is critical. Each and every one of us can make an enormous difference in the fight for artist's rights. Thank you again for your help, and especially thank you to Brad Holland, Cynthia Turner and fellow members of the Illustrator's Partnership of America. We can, and will, do it again.

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    1. Hi Catherine - No - thank you! I haven't invested my time like the true warriors leading this fight. I feel privileged to have been asked to lend a small hand and I'm ready to do it again if we need to :)

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  9. You have to ask WHY the law is being changed. It's to benefit those who want to use, exploit, and sell our intellectual property for commercial gain...who, unlike most artists, have lobbyists and access to politicians. There is a reason certain interests are pushing this. Profit, from our hard work and ideas. I've sent my letter. There is a reason the Copyright Office is requesting our letters and point-of-view. Because they know there is an unfair issue looming, and they need other input. Whether it is window-dressing, or will really matter, is another question,

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    1. Thank you Roxie! You're so right - each letter DOES matter!

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  10. A friend of mine shared me a link. Here.

    http://petapixel.com/2015/07/21/orphan-works-copyright-law-being-considered-again-in-the-us/

    My friend and I were debating on whether Orphan Works is a good or bad thing. I'm pretty uncomfortable with Orphan Acts coming back, because Brad Holland has been a professional artist for over 40 years. The fact that he tried to defend this turning into a bill twice makes me worried.

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    1. If it becomes a bill and gets passed we'll definitely find out the hard way...I think we'd start seeing posts on social media first - artists complaining that they saw their art used by some company without permission or compensation. Then they would try to find an attorney to sue and we'll start hearing that no lawyer will take the case because all the company has to prove is that they "tried" to find the creator of the art...best case for artist - judge tells company to take down the art - which leaves no money for the attorney...what a bad deal for us...

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