The purpose of this post is to raise awareness about the Copyright Office’s plans to create a new Copyright Act which would change the copyright protection that we have enjoyed since 1976 when our current copyright law was established.

My friend and colleague, Joanne Fink (inspirational designer of Zenspirations® www.zenspirations.com, art licensor, speaker and artist advocate), and I, Cherish Flieder (artist and founder of 13,000+ member Art of Licensing Group and the online community of www.ArtLicensingShow.com) are committed to making sure that visual artists voices are heard.

Towards that end, we have co-authored this Call to Action, in order to:

1. Raise awareness about the potential changes to U.S. Copyright Law and how they would negatively impact visual artists.

2. Inspire each of you to make YOUR voice heard by writing a letter to the Copyright Office by October 1, 2015.

 

*Letters from U.S. citizens should be addressed to:

Maria Pallante Register of Copyrights U.S. Copyright Office
101 Independence Ave. S.E. Washington, DC 20559-6000

and begin:

RE: Notice of Inquiry, Copyright Office, Library of Congress Copyright Protection
for Certain Visual Works (Docket No. 2015-01) Dear Ms. Pallante & U.S. Copyright Office Staff:

Send your letter electronically as a PDF or word document via this link: http://copyright.gov/policy/visualworks/comment-form/

*Letters from non U.S. citizens should be emailed to Catherine Rowland at [email protected] and should be addressed to:

Catherine Rowland Senior Advisor to the Register of Copyrights U.S. Copyright Office
101 Independence Ave. S.E. Washington, DC 20559-6000

and begin:

RE: Notice of Inquiry, Copyright Office, Library of Congress Copyright Protection for Certain Visual Works (Docket No. 2015-01)

3. Encourage you to share this information with everyone you know, and ask them to do the same.

 

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HISTORY:

In 2006 and again in 2008, Congress considered enacting “Orphan Works” legislation. An ‘orphan work’ is a piece of art  whose copyright holder is unknown. As drafted, the 2008 Orphan Works Bill would have made it impossible for visual artists to protect their art and intellectual property because:

1. It would have allowed anyone to use a piece of art for any purpose if they were unable to locate the copyright holder after a “diligent” search.

A. Since there is no searchable database of visual art, finding the copyright holder of a particular image is like looking for a needle in a haystack… nearly impossible.

2. It removed statutory damages, which currently prevent rampant willful infringement.

A. Currently,  if a company uses a piece of art that has been registered with the U.S. Copyright Office, without the copyright holder’s permission, they risk being forced to pay up to $150,000 for EACH product they use the art on! This ensures that most companies work out an agreement with the artists whose work they wish to publish, rather than risking expensive legal action.

B. Lack of statutory damages would have made it “cost effective” for companies without integrity to steal/use art because no financial penalty would have been imposed.

The legislation was defeated in both sessions of Congress, thanks in large part to the tireless efforts of Brad Holland and Cynthia Turner of The Illustrator’s Partnership, as well as all the ‘team leaders’ (like Joanne) who went to Washington D.C. to meet with Congressional representatives, and who served as the interface between art organizations and the master lobbying effort.

 

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CURRENT STATUS:

Since 2014, Congress has been holding hearings to gather information before drafting a totally new U.S. Copyright Act, which would replace the Copyright Act of 1976. Last month they filed the Orphan Works and Mass Digitization Report, which makes it clear that the legislation they plan to propose [you may read their 234 page PDF here: http://copyright.gov/orphan/reports/orphan-works2015.pdf ] will reverse the ‘copyright exists upon creation’ premise, and instead require artists to pay a fee to register every design they want to protect. It would also allow infringers to create and register derivative works, which would in turn make it even more difficult for artists to monetize their creations because they would not necessarily be able to guarantee their licensees exclusive use of a design.

1. Under current copyright law it is not necessary to sign, date or even put a © symbol on a work; ergo millions of designs created since 1976 do not have attributions attached, making it difficult to identify the creators

2. The Internet poses an increased risk for art without appropriate credit to be shared, making it imperative for the Copyright Office to continue to recognize the ownership of these works.

3. Many artists are extremely prolific, creating thousands of images each year. It would be prohibitively expensive and time-consuming to force them to register every design created in order to protect it (including past, present and future works).

The U.S. Copyright Office has issued a special call for letters regarding the role of visual art in the coming legislation.

Public Reply Comments DUE by THURSDAY, Oct 1st!

 

You can read about this here: Notice of Inquiry on Visual Works: http://copyright.gov/policy/visualworks/

 

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CALL TO ACTION:

At this point, there is no bill before congress, and our job is to make sure that when a bill is written, the needs of the visual arts community will be taken into consideration. It doesn’t matter if you are a professional artist, crafter, hobbyist, student, manufacturer, art licensor— or not involved in the arts— copyright impacts us all. PLEASE WRITE your REPLY AND SEND YOURS TODAY! And then ask every visual artist you know to do the same. We were able to defeat this legislation in two different sessions of congress because there were enough people who were motivated to DO something… together we can make a difference. Every voice matters… please make sure yours is heard!

Submit your replies online here.

 

If you aren’t sure what to say, here are some suggestions from Brad Holland of the Illustrator’s Partnership:

In your letter to the Copyright OffIce:

It’s important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have “testified” that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.

So when writing, please remember:

—– It’s important that you make your letter personal and truthful.

—– Keep it professional and respectful.

—– Explain that you’re an artist and have been one for x number of years.

—– Briefly list your educational background, publications, awards etc.

—– Indicate the field(s) you work in.

—– Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.

—– Our copyrights are the products we license.

—– This means that infringing our work is no different than stealing our money.

—– It’s important to our businesses that we remain able to determine voluntarily how and by whom our work is used.

—– Stress that your work does NOT lose its value upon publication.

—– Instead, everything you create becomes part of your business inventory.

—– In the digital era, inventory is more valuable to artists than ever before.

If you are NOT a professional artist:

—– Define your specific interest in copyright, and give a few relevant details.

—– You might want to stress that it’s important to you that you determine how and by whom your work is used.

—– You might wish to state that even if you are a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.

The U.S. Copyright Office  acknowledges that visual artists face special problems in the marketplace and they’ve asked artists to respond to five questions. If you are a professional artist, please consider incorporating answers to these questions in your letter:

1. What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?

2. What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?

3. What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?

4. What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic artworks, and/or illustrations?

5. What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

(You can see the detailed invitation to submit letters here: http://copyright.gov/fedreg/2015/80fr23054.pdf)

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Here are links to sample letters:

• Illustrator’s Partnership Part 2 (Submission Info, Questions to Address and Sample letters)
• “Orphan Works – Sample letter to Copyright office” by artist Annie Troe

Other related information:

• Joan Beiriger’s Orphan Works Alert Blog
• Illustrator’s Partnership Part 1 (Summary)
• Brad Holland- The Next Great Copyright Act
• Google Book Project video
• Artsy Shark –  Feeling the Infringement? Take Action Now

The most detailed background information on the subject can be found in a video interview where well-known children’s book illustrator and educator, Will Terry, interviews famed editorial illustrator Brad Holland, co-founder of The Illustrators’ Partnership of America (IPA), who has been active in keeping visual creators aware of the ongoing orphan works threat. VIDEO: https://www.youtube.com/watch?v=kDoztLDF73I

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CONCLUSION:

In summary, the copyrights to your photos, artwork, and other tangible creative expressions are VALUABLE and enable you to determine how and where your work is used; which companies to work with, and what products you want your designs to be on. The U.S. Copyright Office needs to take the needs of visual artists and the Art Licensing community into consideration when drafting this new legislation. Please take the time to protect your future: write today, and share this to encourage others to write as well.

Respectfully,

Cherish Flieder
Illustrator, Designer, Educator, Art Licensor; founder of www.ArtLicensingShow.com and the 13K+ Art of Licensing group on LinkedIn

Joanne Fink
Best-selling author, Calligrapher, Designer, Teacher, Art Licensor; founder of Zenspirations®  www.zenspirations.com 

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Disclaimer: We are not lawyers, but felt compelled to share what we’ve learned with our fellow creatives. PLEASE consult your attorney for a specific interpretation of this proposed copyright change and to find out what it would specifically mean to your business. Nothing contained herein or linked to should be interpreted as legal advice.

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