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" 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." 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).
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Re: I wish you were in the real world.
Date: 2008-05-28 06:14 pm (UTC)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" 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." 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).