Take action today!

by Shannon on May 13, 2008

Ok, I realize I just wrote about a week’s worth of posts into one post just now, but this is too important to put off. If you believe in the right of a knit designer or any other visual artist to preserve their copyright, please contact your congressional representatives today about the currently-fast-tracked Orphan Works legislation.

It’s easy to do — go to this site. There are many options to choose from, but a good generic one to use is here. Here’s a portion of a letter written by a paper arts studio that should give you an idea of what’s at stake:

This bill will basically allow anyone to use a design after a ‘reasonable search’— without the copyright holder’s permission. Even if the copyright holder objects, he has no recourse because the bill eliminates the statutory damages that prevent rampant infringement. The bill further requires copyright holders to register their work on a digital database system that does not exist, and might never exist. Yet the bill will be enacted whether or not these data bases— and the technology needed to effectively search them— ever come into existence.

See what I’m saying? Not good stuff. So please do contact your congressional reps about this — it does not bode well for the knit designers and visual artists of the world if it gets put into law. Come on. Look at what the Congress has done over the past seven years to individual liberty in this country — do you really think they give a damn about how this horrible legislation will affect knit designers? I doubt it. So let’s raise a fuss, shall we?

{ 3 comments… read them below or add one }

Michelle May 14, 2008 at 6:10 am

I don’t usually swear this early in the morning, but are you shitting me? Has Congress been reading Kafka and Heller? “does not exist, and might never exist”? Are you shitting me?

Delf May 16, 2008 at 4:50 pm

You don’t say where your information comes from, but whoever it is, they’ve got the situation completely backwards with regard to the Orphan Works Act. It doesn’t take away any copyright holder rights; rather, it codifies a way for people to use orphaned works after they make a good-faith effort to locate the copyright holder.

You, as a copyright holder, have always had the responsibility to police your copyrights, and this act doesn’t make that any harder. In fact, the act gives you three things to make that easier: a way to register your holdings in a public database so that people can contact you to arrange authorized use of your work, a requirement that users make a good-faith effort to find you, the copyright holder, and an easy test for what constitutes that good faith effort — did they check the public database, was the contact information there valid, and did they contact you?

There’s a more balanced discussion of the bill and its effects here.

The discussion thread there is quite informative, too, with both pro- and con information and opinions.

Shannon May 19, 2008 at 5:48 pm

Delt, the information, including the quote I reference above, came from the National Needle Arts Association (TNNA), one of the largest trade groups in the yarn-related industry and one to which many designers belong.

Quoting from the article you linked:

Orphan works legislation attempts to remedy this problem by allowing people to use material after a “good faith” search for the owner; it also creates electronic databases to make searching for owners easier. Should a rightsholder emerge, that person would be owed money but not massive damages.

This may not be problematic for something like the “copying your parents’ wedding photos” example referenced in that article. After all, really, the chance of your parents’ wedding photographer a. being alive and c. bothering to sue you is pretty farfetched.

Knit designers — and that’s who we’re worried about here — spend an awful lot of time policing their copyrights. Most of it is willful infringement — one good example would be the horrible, awful, no-good, very very VERY bad people who do things such as photocopy patterns out of knitting books and sell them on eBay. (As if you’re not eventually going to get busted, you idiots).

In the discussion thread for the article you linked, someone posted a letter from Tammy Browning-Smith, who lives down the road and is a friend of mine — and also an intellectual property attorney who primarily serves artists. Here’s what she wrote:

Many of your wonderful members asked if I would join in order to answer some questions since I am a practicing attorney who works extensively in copyrights and trademarks. I would be happy to do so if it will clear up some confusion on this OW issue. I just ask if you do ask a question, you be patient with me. My letters to Congress have become quite popular and I am being pulled in all ends. I have skimmed the postings and I have a few comments for you:

1) The biggest problem with OW from my perspective is that it truly changes the system of registration. Formality has not been required (i.e. – registration, copyright notice, etc.). It also places a strong burden on an artist to protect his or her work and NOT on the person wanting to use a so called “Orphan.” The procedure set forth in the proposed language of both the House and the Senate Bills are terribly inadequate and will cause so many problems than help.

2) There are other countries using excellent systems for true “orphans.” Canada is a poster child for this. It places the burden on a potential user to truly prove it is an orphan and that the potential user has done everything to do something to find him or her or it. The heart tugging stories being used are truly fluff. There are “fair use” exceptions and the like that can apply. The amount of orphans that LEGITIMATELY should be used are very small for the drastic impact this legislation would have. There are truly motives for profit here for databases, “orphan royalties”, and the like.

3) Graphic Artist Guild and the some others are stating that this Bill WILL pass and that we should not write letters. I could not disagree more. First and foremost, it is a persons responsibility to let his or her government know his or her opinion. Secondly, there is a significant amount of education that MUST take place. I continue to speak to legislative offices that have no idea what these bills are all about. It is a crime, many of them think this is just “administrative” and will not affect very many people.

4) Finally, these Bills punish persons who have followed the law since 1976. The law has not required registration and/or notice provisions. These persons would truly be hurt the most. This will have a strong impact on rural artisian communities and others who create amazing works that represent our country. To this point, the only way their work has not been stolen is that it is against the law – that will no longer be the case.

Don’t get me wrong, if these Bills pass, merge and become law – attorneys will benefit greatly. It will be essential that one who creates uses highly skilled legal counsel to register his or her works and develop a program to insure his or her works are not orphans. It will also require artists to go into their archives and begin registering or re-registering prior works to insure that all their “stuff” is covered.

The BEST way to prevent this legislation from coming into law is by educating yourselves, and speaking intelligently on the issue. It appears as if many of you have and continue to ask questions. And for our international friends – your voice is important as this does affect your protection here in the US. If your works comes on US soil – your work will be covered under these provisions.

Keep fighting the good fight!
Tammy Browning-Smith

You might also be interested in her blog — artsandcraftslaw.blogspot.com — particularly the post including her letter to the House. Tammy is one smart lady and a hell of a lawyer, so I am more inclined to believe her when she says it is potentially damaging — she’s handled many cases that are incredibly similar to what would happen here if the bill passes. The last post on that thread as of right now is so incredibly offensive to me:

To all of you creators out there who don’t like this bill.

Welcome to the blowback of the recent actions of the RIAA and MPAA other mega-coprs. The American people are sick and tired of IP being used as some sort of exorbitant retirement system. They are tired of all the abuses to the copyright laws.

I have said before and I will say again. IP is not a natural law. The people gave the law, and they can take it away.

You know what? Screw that. “Exorbitant retirement system”? I’m damn well willing to bet the majority of my blog’s readers make much more money than I do AND have benefits/retirement accounts/etc to boot. Newsflash to the person who posted that — most creators do NOT make a ton of money, do NOT have the legal wherewithal to go after the companies that will likely violate the hell out of their copyrights if this passes (and then retroactively try to pay you off if they get caught — much cheaper than the bad PR of a protracted court fight), and will get the raw end of the deal.

It does not matter if we register our works in some mythical, as-yet-nonexistent database. The companies that want to infringe still WILL, because it is easier than going through the correct procedures, and because they know they have more money to throw at a lawyer than we the creators do.

Hell, there’s an entire website devoted to just how many times Urban Outfitters has done this with indie artists’s work: http://www.urbancounterfeiters.com/

Now just guess how much luck the artists who were copied by UO have had in getting them to cut it out…and that’s a fairly cut-and-dried graphics question. Get into something more nebulous like knit pattern design and well, it’s going to get ugly.

Leave a Comment

Previous post:

Next post: