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Orphaned Works S.2913, a letter from Sen. Graham
A letter from the United States Senate, Sen. Lindsey Graham, May 21, 2008 Dear Robert, Thank you for taking the time to contact me regarding copyright regulations. I appreciate the opportunity to hear from you. As you know, S. 2913, the Shawn-Bentley Orphan Works Act of 2008, is designed to limit resources available in a copyright infringement action involving the use of orphan works. I recognize the negative impact this type of restrictive action may have on independent creators of visual works. Under this legislation, if the material is used and the copyright owner later comes forward, the user must pay the owner reasonable compensation and cease the use of the work. If the user fails to conduct a conscientious search or does not negotiate a fee with the owner, statutory remedies would apply, however, the bill also requires the Register of Copyrights to make searching and documenting searches easier by making copyright ownership information more accessible. I understand your concerns regarding this legislation and am pleased that the sponsors of the bill, Sen. Leahy & hatch, offered a substitute amendment which tries to balance the interest of copyright owners and those of potential uses by requiring a diligent search in good faith for a workâs creator. These new provisions are designed to strengthen and streamline requirements for a qualifying search while clarifying eligibility provisions for orphaned works, The amendment also created an exemption for works on âuseful articles", which includes goods like coffee mugs, T-shirts, and other items with images, and included language that would amend the timing of the new rules implementation and tighten database certification requirements. The new version of the bill passed by the senate Judiciary Committee on a voice vote on May 15, 2008. Should this legislation come before the full United States Senate, I will keep your thoughts in mind. â¦â¦ Lindsey Graham. ------------------------------------------------------------------- The Discussion is now open! May 30 08 08:17 am Link May 30 08 08:31 am Link Here's the response I got from Senator Coleman: Dear Mr. Thielen: Thank you for taking the time to contact me regarding S. 2913, which is commonly referred to as "orphan works legislation." I share your concerns about the impact this law could have on the rights of an artist to his or her work and I appreciate hearing from you on this topic. Please know that I will closely monitor this issue. As you may know, S. 2913 was introduced on April 24, 2008 by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-OH) and aims to provide a limitation on judicial remedies in copyright infringement cases involving orphan works. An orphan work is a copyrighted work of art where it is difficult or impossible to contact the holder of the copyright. On January 31st, 2006 the United States Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee. This report concluded that the treatment of orphan works under current copyright law results in problematic obstacles to successful identification and location of a copyright owner. Under current law, a copyright is created automatically when the creative expression is fixed in tangible form. I understand you are concerned that a move away from this precedent could make it difficult for artists to obtain and maintain the rights to their own work. Please know that I will not support legislative efforts that weaken an artist's ability to obtain and retain the rights to their work. Per your request, please know I will keep your views in mind should legislation in relation to orphan works reach the Senate floor for a vote in the 110th Congress. Once again thank you for contacting me regarding this issue. Please do not hesitate to contact me on any issue of concern to you or your family. Sincerely, Norm Coleman United States Senate ___________________________________________________________________- Here's the thing: If you don't know if a picture is public domain then assume it is copyrighted and move on. It really is a no-brainer, and there doesn't need to be any gutting of the current copyright law. This has got to be some of the stupidest legislation ever proposed... May 30 08 08:34 am Link 514.B1c1 " (1) MONETARY RELIEF- `(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney's fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work. `(B) FURTHER LIMITATIONS- An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, museum, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that-- `(i) the infringement was performed without any purpose of direct or indirect commercial advantage; `(ii) the infringement was primarily educational, religious, or charitable in nature; and `(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement. `(C) EXCEPTION TO FURTHER LIMITATION- Notwithstanding the limitation established under subparagraph (B), if the owner of an infringed copyright proves, and a court finds, that the infringer has earned proceeds directly attributable to the use of the infringed work by the infringer, the portion of such proceeds attributable to such infringement may be awarded to the owner." _______________________________________________________________________ conclusion: Does this man someone can "monkey" with an images just for fun, with disregard to the authors meaning, creativity, statement, or whatever, as long as the infringer does not do so for a profit? May 30 08 08:38 am Link Senator Graham's response is certainly disappointing. May 30 08 10:06 am Link Pat Thielen wrote: it seems by design a way to not pay the photographer and still use the images May 30 08 10:10 am Link TXPhotog wrote: extremly May 30 08 10:10 am Link TXPhotog wrote: Identical, word for word response I got from Sen Martinez... May 30 08 10:16 am Link Pat Thielen wrote: Got the same letter from him. There are links on my profile page for people to learn more or take action on this issue. May 30 08 01:28 pm Link TXPhotog wrote: but very expected. Artists typically are not a group who band together to accomplish anything, and often are not the ones who make money, the ones who exploit them do and this may well work out to their benefit. May 30 08 02:29 pm Link  I wonder why some companies may push so hard on this bill, when they can already be cheap-asses and use stock sites for a dollar an image  May 30 08 02:36 pm Link Dear Friend: Thank you for contacting me regarding S.2913, the Shawn Bentley Orphan Works Act of 2008. I appreciate hearing from you on this issue. As you may know, "orphan works" are typically defined as copyrighted works whose owner cannot be found. S.2913 seeks to limit damages in copyright infringement cases for users exhibiting orphan works. This legislation is currently being considered by the Senate Judiciary Committee, of which I am not a member. Rest assured, I will keep your views in mind should S.2913 come to the Senate floor. Again, thank you for writing to me. Please feel free to contact me again about any issue of importance to you. Barbara Boxer United States Senator May 30 08 02:49 pm Link BlindMike wrote: That's roughly what my representative said. At the end of the day it seems that the thing to do is the thing I've heard since college from my teachers and also attorney friends. Register your work, or the work you plan to put into the public domain. This will be ones best defense against any copyright infringement and also the best way of keeping your work "in the family". May 30 08 02:56 pm Link This bill is one of the (if not THE) most corrupt pieces of legislation I have ever heard of. I wonder how much money in "contributions" it took to get the slim in Washington to push this shit through. It is basically a reverse "Robin Hood" act stealing from the poor and giving to the rich. As if America isn't backwards enough now we are going against the international community on copyrights as well. WTF is wrong with this country. It also opens an international issue where an American company can steal images globally and not be held accountable because they "tried to find the photographer, but he was never available" Because he lives in India or some other country that they just didn't bother to track down. This Act is going to go bad for a lot of people. They are basically making it easy to get something to be "orphaned" and put it up to the artist to track it down. WTF is that... If they want to deem something "Orphaned" then they need to have an independent government agency that does the research for the company that wants to use the work, and make them pay for to have a work researched and orphaned. $1000 non refundable for each work to be researched. If the artist emerges then his copyright should be upheld and the company should pay. People are stealing images already and this act just gives big companies permission to steal. Artists need to work together May 30 08 03:01 pm Link Like I said before it's very simple: Assume the work is copyrighted and don't steal it. There is no need for this bill in the first place (unless of course you're someone who wants to steal peoples' work). Bastards! May 30 08 06:00 pm Link Here are the responses I've gotten. I sent the same letter to all three. Its interesting the responses I got back. The one at the very bottom from Bartlett is the best. Ben Cardin Thank you for writing to me regarding the Shawn Bentley Orphan Works Act of 2008 (S. 2913). "Orphan Works" are copyrighted works whose owners are difficult or impossible to identify and/or locate. Consequently, many copyrighted works that are, in fact, abandoned by owners are never used because their owners cannot be found. In practical terms what this means is that a family cannot restore wedding photographs of their grandparents, if they cannot locate the original photographer to obtain permission to use the copyrighted work; a library cannot display letters written by American soldiers during World War II, if the library is unable to contact the soldiers or their descendents; and a museum cannot restore or exhibit old reels of film, photograph, or lithograph, if they cannot determine the studio of origin or the photographer or artist that produced the work. Consequently, such works that are part of our rich national heritage are never exhibited. It was with this in mind that Senators Leahy and Hatch asked the Copyright Office (CRO) to examine this issue and prepare a report. According to CRO, there is a virtual treasure of history locked in cultural institution throughout the United States and no market to publish or exhibit such material because of the orphaned status of such work. On April 24, 2008, Senator Leahy and Senator Hatch introduced S . 2913. Under this bill, potential users may use an orphan work if they conduct and document a diligent search but were unable to locate the copyright owner of the work for permission. On May 15, 2008, the Senate Judiciary Committee adopted a substitute to the original bill and passed the bill out of committee . The substitute reflects many changes. It modified the best practices requirement to clarify the Copyright Office's role in implementing them and it made minimum search requirements clear. Additionally, the substitute changed the visual works database certification requirement and placed databases of visual works in best practices. The Shawn Bentley Orphan Works Act seeks to unite users and copyright owners at a basic level. It does not create any orphans, and it does not create a license to infringe. The Act creates a mechanism for users to employ orphan works, and for owners to be compensated for works not currently in use. Again, thank you for writing to me regarding this important legislation. If I can be of any further assistance, please do not hesitate to contact me in the future. Barbara A. Mikulski Thank you for getting in touch with me to express your concerns about the United States Copyright Office's "Report on Orphan Works." It's great to hear from you. As you know, the Copyright Office recently proposed legislation to change the rules for using copyrighted works in situations where the creator or owner cannot be identified. I understand your concerns that adopting these proposals would affect your ability to earn a living as a photographer. I want you to know that I strongly believe copyright laws should help foster creative endeavors that enrich the lives of all Americans. The Senate Committee on the Judiciary recently held a hearing to consider the Copyright Office's suggestions. Knowing of your views will be very helpful to me should this proposal come before the full Senate for debate. Again, thanks for contacting me. Please let me know if I can be of further assistance to you in the future. ROSCOE G. BARTLETT Thank you for taking the time to contact my office. I hope that you find my web site helpful with any questions that you might have. As you may know, I receive many e-mail messages every day. Due to the high volume of e-mail, I can only respond to residents in the 6th Congressional District of Maryland. If you reside in the 6th District,please be assured that if your question is not addressed on the web site, I will answer and respond to your concerns as quickly as possible. Please note that my web site will be periodically updated with the latest congressional news and initiatives. If you reside in the 6th District and are experiencing a particular problem with a federal government department or agency, please contact one of my district offices as soon as possible. For your convenience, the district office information is listed below. Please contact the office which covers the county in which you reside. Once again, thank you for taking the time to contact me. I hope you will continue to keep me informed of your concerns. In the meantime, I encourage you to visit my Internet website http://bartlett.house.gov/ where you can follow my legislative efforts, order a flag, or learn more about the fantastic 6th Congressional District of Maryland. May 30 08 06:30 pm Link Wow -- Bartlett sure is helpful... Not! What a dork. May 30 08 06:36 pm Link ROSCOE G. BARTLETT what a usless piece of human waste. That ladies and gentelmen is our tax dollars at work... woo hoo gotta love America May 30 08 06:57 pm Link Pat Thielen wrote: At least the other two had a form letter that mentioned the issue at hand May 31 08 12:18 am Link NorthPoint Photography wrote: Well... It's only fair. I sent my representatives a form letter too. I only hope they realize that I'm concerned about this issue (as are many others). May 31 08 07:03 am Link Clark P wrote: x Clark P wrote: is it possible to discuss this topic without the gratuitous anti-American bigotry? May 31 08 07:17 am Link NorthPoint Photography wrote: 1) The family will do so anyways, and very unlikely with any repurcussion from the original photographer (if its truly that old, they're either not going to care, or it would have been well past the studio's usefulness). May 31 08 08:50 am Link you want to see them all rally behind some negative reactions? write them about implementing tort reform. you're an artist? suck it up. want to limit remedies in other areas? not a chance in hell. were congress comprised of painters and sculptors and photographers i suspect there'd be a different reaction May 31 08 10:35 am Link GAETANO CATELLI STUDIOS wrote: Clark P wrote: x Is it really bigotry? May 31 08 02:26 pm Link Pat Thielen wrote: I kinda expected to get a form letter in response to my form letter but he could have atleast mentioned the topic at hand in his response. Thats what shocked me. May 31 08 03:24 pm Link NorthPoint Photography wrote: You should mention it. That is an elected official chosen to represent the people, using an automated response email referring people to his website. WTF is that? They have an obligation to the people, and that kind of response is ridiculous. He could have just had an office assistant put something together in response, like I am sure all the others did. May 31 08 04:11 pm Link Also see Senator Martinez writes back in regards to ORPHAN thread Jul 23 08 04:06 pm Link RB Davis Photography wrote: According to my sources, at the referenced committee hearing, the only "spokesman" for photographers' interests was falsely described as such; he was actually one of Google's lobbyists. The presenters and persons involved at the hearing were mainly Google lawyers and lobbyists. Jul 23 08 05:53 pm Link NEW! Improved Copyright! Brought to you by the same Senator who brought you those unregulated subprime loans and unregulated speculative trading of oil. But, after all, people aren't actually ripping off our copyrights, we're just whining about it... *sigh* I do think that copyright law needs to be reformed, in favor of the public domain. And I do think that orphaned works are a problem that should be address. But neither should be done at the expense of gutting the clear Constitutional mandate to "secure for limited Times...the exclusive Right" to distribute one's own work. Jul 23 08 10:13 pm Link I don't really see how orphaned works are really a problem. The problem is not that there are all these works that are so wonderful and so powerful and no-one can use them... the problem is that these corporations just want something for FREE, and they don't want to wait until you've been dead for 80 years to steal your artwork. Stock images are cheap, but apparently not cheap enough for these greedy SOB's. Here we are in the midst of severe economic problems that are only getting worse, and here comes along a bill that says corporations can use artist's work without paying them unless the artists pay to have every single piece of artwork they have even done be copyrighted. Hmm... so you are telling me that unless I pay to have all my work copyrighted, it can be stolen... but since you have a license to steal other people's non-copyrighted works you probably wouldn't pay for my work anyway. So basically, what would motivate anyone to even create works and share them with the public under such a law? If you share your works they could be outright stolen unless you pay to have them protected. If you pay to protect your works, they will just steal from someone else. After all, why would they pay you to do their artwork when there are millions of artists out there they could just steal from? Jul 24 08 02:47 pm Link This is the letter I received. Mr. Morris Thank you for contacting me about that Orphan thing. You know I've always liked orphans and think we should do everything in our power to produce more of them. That's why I'm against abortion. Be sure and vote for me this Fall! Sincerely Mitch Senator Mitch McConnell (Rep.) Phone: (202) 224-2541 Fax: (202) 224-2499 361A Russell Senate Office Building Washington, DC 20510-1702 Jul 24 08 02:55 pm Link thats why i put my name on ANYTHING i post to the internet. a simple google search of perish photography leads you to me. shouldnt have to, but its just one of those things. Jul 24 08 03:05 pm Link |
