Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm As a person who has earned a living from licensing my artwork for products I and the majority of artists and designers feel this bill has overlooked our industry . This will give manufactures a license to steal out artwork easy. We are NOT paranoid artists . Our concerns are best described in this letter . This is letter sent to a senator from an IP attorney I have been given permission to post .
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. 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.
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.
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Re: I wish you were in the real world.
Date: 2008-05-28 06:12 pm (UTC)Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm
As a person who has earned a living from licensing my artwork for products I and the majority of artists and designers feel this bill has overlooked our industry . This will give manufactures a license to steal out artwork easy. We are NOT paranoid artists . Our concerns are best described in this letter . This is letter sent to a senator from an IP attorney I have been given permission to post .
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. 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.
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.