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AAEC responds to passage of Orphan Works Act

Ted Rall, president of the Association of American Editorial Cartoonists (AAEC) has written an official response to the Senate passage of the Orphan Works Act. It is as follows:

The Association of American Editorial Cartoonists (AAEC) is dismayed to learn that unscrupulous members of the U.S. Senate have taken advantage of Americans’ focus on the nation’s financial crisis in order to pass controversial legislation that threatens the livelihoods of everyone who relies on copyright for a living.

Deploying perfidious secrecy reminiscent of the circumstances of the passage of the USA-Patriot Act, the Senate passed S. 2913, also called the Shaw Bentley Orphan Works Act of 2008 (“Orphan Works Act”) on Friday, while the national media was focused on the mortgage meltdown bailout proposal. A similar bill is being considered by the House of Representatives.

The owner of a store notices a man shoplifting her merchandise. She calls the police, who arrest the man. But they don’t take him to jail. Instead, they let him keep the stuff he stole. All he has to do is pay the retail price. They let him go.

Crazy? You bet. But that’s exactly what Congress wants to do to intellectual property. If a cartoonist or another artist catches someone stealing his or her work, the thief gets to keep it. All he has to do is pay retail.

Sponsors of the Orphan Works Act claim they want to make it easier for libraries and researchers to reproduce intellectual property whose creators or copyright holders are difficult to find. The practical effect of the Orphan Works Act, however, would be far more sinister. If signed into law, it would create an irresistible incentive for unscrupulous individuals and companies to violate copyrighted material, including the political cartoons created by our members.

“The bill enables users to exhibit orphan works if, after a thorough and documented good-faith search, they are unable to locate the copyright owners,” reports the Deseret News of Salt Lake City. And there’s the rub. A “good-faith search” is so broadly defined as to be meaningless.

Let’s say, for example, that a book publisher wanted to print an editorial cartoon in a history textbook. Currently a typical reprint fee for such use is $250. Under current copyright law, a publisher who gets caught using such work without permission would be liable for three times the standard rateâ??in this case, $750. A judge could order the books impounded. If the cartoonist had to hire a lawyer, a judge could make the violator pay his or her attorney’s fees. These provisions deter most would-be copyright violators.

Under the Orphan Works Act, the deterrent effect of punishment would all but vanish. If the cartoonist learned about the infringement and tracked down its perpetrator, all the publisher would have to do to avoid the triple penalty would be to claim that it engaged in an as-yet undefined “good-faith search.” In the cited example, the aggrieved cartoonist would receive $250. He or she would have no way to remove the image from a book that he or she might find objectionableâ??say, one that advocated reprehensible political views. There would be no compensation for legal fees, or the time and effort involved in tracking down lawbreakers. And that’s assuming the artist were ever to learn about the illegal usage.

In the unlikely case that an artist were lucky enough to learn that his or her work had effectively been stolen, he or she would only be entitled to “the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.” But this is no different than the storeowner who catches a shoplifter. A victim of theft is NOT a “willing seller.”

Laws that encourage illegal behavior are bad laws. We hope the House and President Bush will join us, at least 60 other organizations representing writers and artists, and millions of Americans employed in the creative arts, in opposing the Orphan Works Act.

Ted Rall, President
Association of American Editorial Cartoonists

Community Comments

#1 Danny Burleson
September/29/2008
@ 12:29 am

Wow, go, Ted Rall! I hope this bill goes down in flames.

#2 Ben Fulton
September/29/2008
@ 9:11 am

I think it’s a good bill. The point of not having a definition of a “good-faith” search is straightforward – it means that the user has to act in good faith, rather than jump through hoops like, “Search every newspaper published in the last 75 years” or something. If you have copyrighted material and a reasonable person could find the copyright owner in a few minutes with Google, you shouldn’t have anything to worry about. The bill is targeted at material that is many decades old.

#3 frank white
September/29/2008
@ 11:09 am

Ben go and learn about the tradegy perpertrated against Percy Crosby the creator of Skippy. Read and asorb what can be done to people. Then come back here and please tell us all you have changed your view.

#4 Alicia Wagner Calzada
September/29/2008
@ 7:44 pm

For those who don’t understand why creators would be impacted by this legislation, here is an article from the August issue of News Photographer:
http://www.nppa.org/news_and_events/news/2008/09/images/orphan_works_article.pdf

#5 Phil Wohlrab
September/30/2008
@ 8:32 am

Actually Ben, you’re wrong.
And it’s clear from your website that you are not an illustrator of any kind.

The good faith search would only take place on registries which artists would have to pay to include themselves on. You’d have to pay to register every piece of artwork. If an artists name and images are found anywhere on the internet your art, illustrations, photography is fair game, if they aren’t on one of these registries. A site like “Deviant Art” could experience many artists taking down their work.

Besides, ask yourself, Why would congress be so eager to use material that is many decades old? That stuff is virtually worthless for current, modern day commerical use, Ben.

————————————————————————————–
The most common scenario of orphaning in visual art is the unmarked image. There is only one way to identify the artist belonging to an unmarked image. That would be to match the art against an image-recognition database where the art resides with intact authorship information.

â?¢ These databases would become one-stop shopping centers for infringers to search for royalty-free art. Any images not found in the registries could be considered orphans.

â?¢ There is no limit to the number of these registries nor the prices they would charge artists for the coerced registration of their work.

â?¢ The artist would bear the financial burden of paying for digitizing and depositing the digitized copy with the commercial registries.

â?¢ Almost all visual artists such as painters, illustrators and photographers are self employed. The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works. The cost and time-consumption to individual artists of registering tens of thousands of visual works, at even a low fee, would be prohibitive; therefore countless working artists would find countless existing works orphaned from the moment they create them.

â?¢ The Copyright Office has stated explicitly that failure of the artist to meet this nightmarish bureaucratic burden would result in his work automatically becoming an “orphan” and subject to legal infringement.

#6 Phil Wohlrab
September/30/2008
@ 8:50 am

I mean seriously.. the more i think about.. Where is this huge demand for people who absolutely need to use artwork decades old that it requires an act of congress. Who are the people that will be using this old artwork. Where are they? This is an attempt to make the internet into a free shutter stock.

#7 Mike Lester
September/30/2008
@ 9:33 am

I could have done w/out the partisan reference to, “USA-Patriot Act” but overall an excellent letter and even better cause for us all to form a bucket line and put this sucker out.

And you’re right: This “act of Congress” to reign in “BIG ART” doesn’t pass the smell test. They’ve paid no attention to our industry thus far. Why all the sudden interest?

#8 Jason Nocera
September/30/2008
@ 10:05 am

Why can’t the NCS create a database? That way, they can allow all members to have there cartoons on there for free. In turn, they can charge the publishers/researchers/etc. looking for an image some type of a search fee. The money gained from this search fee can be used to maintain the website. That way, instead of the burden and cost being placed on a cartoonist, it can be placed on those doing the searching.

#9 Wiley Miller
September/30/2008
@ 11:47 am

“Why canâ??t the NCS create a database? That way, they can allow all members to have there cartoons on there for free. In turn, they can charge the publishers/researchers/etc. looking for an image some type of a search fee.”

This would be an undertaking far beyond the means of a fraternal organization such as the NCS.

#10 Rick Stromoski
September/30/2008
@ 12:27 pm

“Why canâ??t the NCS create a database? ”

There’s an unwritten standing policy in the NCS of whoever suggests the NCS create a program or institute an organizational directive, that the person who suggests the action then heads the committee and is in charge of it’s implementation

Congratulations Jason.

#11 Jason Nocera
September/30/2008
@ 6:25 pm

Yay! And I’m not even a member, how cool is that?

#12 Mike Peterson
October/1/2008
@ 2:52 am

“Ben go and learn about the tradegy perpertrated against Percy Crosby the creator of Skippy. Read and asorb what can be done to people.”

This is a case of trademark infringement, not copyright violation. It involves the Patent Office, not the Copyright Office.

In any case, are you suggesting that the original infringer claimed to have stumbled across the comic strip and that they were unable to discover that it was the work of Percy Crosby?

I hate to be a crank about this, but so far I haven’t seen a case cited that deals with an orphan work under the definition. I’m not saying that people don’t come across images and appropriate them for their own use, but nobody here has yet cited a case where that wasn’t a matter of simple infringement, which is not covered by this law.

#13 Barry Deutsch
October/1/2008
@ 5:53 am

The bill is dead, at least until after the election. (At which point I hope it passes.)

I’d recommend reading this post on Animation Options for a pro-Orphan-Works argument by someone who creates content for a living.

Phil writes:

I mean seriously.. the more i think about.. Where is this huge demand for people who absolutely need to use artwork decades old that it requires an act of congress. Who are the people that will be using this old artwork. Where are they?

If you’re a fan of classic cartooning, you probably already know about the ASIFA archive. Steve Worth, who runs ASIFA, wrote:

As an archivist at a non-profit museum and library, I would love to make the material in the ASIFA-Hollywood Animation Archive more widely available. But unless the situation changes, the treasures we are accumulating will be bottled up in a building on Burbank Blvd. Itâ??s important to be able to get the information out to the people who can use it in the way that they want to be able to access it. The idea of a library being a big building with marble walls and bookcases is a thing of the past. So are archives that make you sit at a table and wear white gloves while someone hands you a box and stands over your shoulder watching you while you open it. Today, the greatest library, museum and archive in the world is sitting on everyoneâ??s desk and itâ??s connected by a wire to everyone elseâ??s desk. Copyright law needs to change to reflect those new realities, if it doesnâ??t it will continue to be an impediment to learning.

I wish opponents of the Orphan Works Act understood that orphaned works are a serious problem, and were willing to suggest alternative solutions. What I’m hearing, however, is that most of my fellow cartoonists would rather see the history of our medium remain inaccessible forever than take a tiny risk, however remote, that someone somewhere will reprint our cartoons and not pay for them. (Even though we all know this happens on a daily basis, with or without the orphan works act.)

#14 Ted Rall
October/1/2008
@ 7:33 am

Yay! Cartoonists win for once! Thanks to everyone who contributed to the effort to kill this rancid bill.

Barry, you’re awesome and I love you, but I hardly think the inability to republish stuff because you can’t find the copyright holder qualifies as a “serious problem.” Sounds more like a minor annoyance to me.

Even assuming it is a problem, however, it is up to the archivists, etc. who want to change the existing law to come up with a solution that does not make other people’s–i.e. my and my fellow cartoonists’–lives more difficult.

In politics, follow the money. The money behind the lobbying effort comes from Google and Microsoft–huge corporations that want to increase their profits by obtaining material as cheaply as possible, aggregating it, and selling it for big bucks. Sorry, but I can’t see what’s in it for me, as a content creator.

I might feel differently about this if this were all coming from librarians, for whom I feel nothing but trust, admiration and affection.

#15 Wiley Miller
October/1/2008
@ 10:30 am

I keep going back to the impetus of this bill. The benefits for researchers and librarians strike me as being the front story masking the real reason this bill was proposed in the first place. Was this some sort of grass roots movement to right some wrong for the benefit of the public at large? Please. When a bill like this is pushed by heavily funded lobbyists, it is being done so for the benefit of a corporate entity.

Don’t be distracted and misdirected by the librarian and researcher spin. Just follow the money to see who is actually going to benefit from it. They are not doing it for altruistic reasons, they are out for a profit, to get something for nothing.

Look for the big picture hiding behind the curtain of spin.

#16 anne hambrock
October/1/2008
@ 11:36 am

I hate to keep bringing up the music industry but they have similar intellectual property issues. Regardless of high profile nonsense like someone owning the rights to “happy birthday”, (where royalties are only paid when it is used in a film or such – not when sung at someone’s house) there are scads of tunes officially in the public domain. Is there no equivalant for printed images? And if there is a public domain for printed images wouldn’t it be simpler just to create a database for those?

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