I received the following message from, Michiko, one of our authors. Michiko has had one of her art pieces ripped off by Camel so she knows what she is talking about. This concerns all of us and I encourage you to write your congress person and voice your opinions. Here’s the email Michiko sent me:

Are you an artist, photographer, writer, musician, performer, creator….or do you know one who may be affected by this in the coming weeks?

The Shawn Bentley Orphan Works Act is a proposed change to our existing copyright law that has been in place protection artists, writers, photographers, musicians and various creators since 1976. By default the current copyright law, which we love, protects your ownership of anything original you create from the moment you first put it into a fixed form, whether you formally register it or not (sure, you get additional protections and the right to sue only once you’ve registered it with the U.S. Copyright Office in D.C.). By letting our creative work automatically belong to us without being required to formalize it to prove ownership, the US is in compliance with the international Berne Convention treaty protecting creators in other countries as well (and their work if it falls into US usage).

The Shawn Bentley Orphan Works just voted in by the Senate last week and up for voting in the House of Representatives any minute, depending on whom you talk to (see below), now proposes to make the default that your creative work belongs to the public domain if somehow your work does not have your authorship information (copyright line, name credit, signature, etc.). Basically, a creative work without the creator’s name is considered an orphan - whether or not the creator left the name or whether someone else deliberately removed it to claim it’s an orphan.

Most dangerously, the Orphan Works bill was proposed under false pretenses, claiming it’s to allow archives and libraries access to original work whose authors cannot be found and may have passed away. It all sounds very innocent, doesn’t it? (Oh, the poor orphans!) While no one can really object to the morality of that, the Orphan Works bill fails to understand that these protections for libraries and archives already exist under the “fair use” portion allowed in our existing copyright law. The whole reason the Orphan Works bill exists, the problem it originally proposed to solve - doesn’t need solving. It’s already been solved in the 1976 law.

So what’s the need for this change to the law? Well, it might be helpful to take a look at who’s supporting it. Google gave a huge donation to the Copyright Office, and Google itself has admitted that there is a lot of revenue they can generate once these creative works missing their creators’ names, then (under this Orphan Works bill if the House of Representatives vote it into law) these images can fall irreversibly into the public domain overnight - and they can harvest them, change them a little bit, and copyright them as their own work. Your artwork or writing or music today, if someone were to strip off your authorship credits, would become an orphan overnight, and they can be pirating your work onto new merchandise, into distasteful ads, etc. without your permission and without compensation to you, before you wake up in the morning.

Too much doom and gloom? Yeah. Sucks. You’d think with thousands of creators writing, calling in to Congresspeople, faxing, etc. that they would hear the protest and reconsider the bill. But there are folks pushing hard for this bill who’ve drafted it in secret, who brought it into being under false pretenses (while it started off seemingly to protect libraries and archives, they definitely made a point of leaving unsaid that commercial use of orphaned work would now be allowed, and that not only deceased artists from another era could be orphaned, but contemporary creators could have their work legally stolen, changed and exploited today.

It happened to me. My Blue Girl image was copyright infringed by Camel cigarettes in 2000. They scanned a self-promotional postcard we put out there specifically so that viewers could license my artwork - the postcard had my signature, my name, my website, and my copyright notice, right there on the front and back. Camel cigarettes’ ad agency scanned my postcard and removed my name and all contact information in Photoshop, put their Camel logo right smack in the middle of the focal point of my image as a cigarette endorsement, and published it to an estimated 8 million readers as full-page newspaper ads promoting their cigarettes and their nightclub events. All this, and they later admitted they’d known how to contact me. It took 4 years and nearly $100,000 in legal fees to get them to correct it.

The Orphan Works bill also seeks to severely limit remedies to the creator if you do catch an infringer in the act, to small claims limits. I don’t know about you, but in my county Small Claims court caps your ability to recover money at about $4000-5000 and doesn’t allow the courts to award you legal fees. $4000-5000 would get me about 10 hours of my lawyers’ time, and nothing left to pay for the infringing use, even if we won.

And it spawns a whole batch of private registries that would pretend to protect our work, but wouldn’t (if you’re not paid and listed with every single registry out there - and many of us have created thousands of original works, so we’d need to pay registration fees to protect each one - well if you’re not listed in every single image registry on the web, if someone can’t find you to contact you they could claim they tried, and if you try and sue them, they’d only have to pay the small claims limits and even then, only if they get caught. I was lucky in that we caught Camel right away because enough friends recognized my work).

Basically, we are against the Shawn Bentley Orphan Works bill because of the way it switches the default right of ownership to our original work into the public domain if even one person out there decides to remove our name from our work out there on the internet, on paper, in any form. This in a way allows the public to take eminent domain over our private property, and violates the Berne Convention on an international level by requiring us to formally register each and every work. Creators in other countries who have rights in their own countries under the Berne Convention would immediately and irreversibly lose the rights to their own work once it crosses over into US soil (or cyberspace). The U.S. would be in violation of international law, yet Congress seems to be ignoring this.

Lastly, the lack of honesty and transparency in how this bill was drafted and voted on has created an uproar, but will they listen? They’ve seemingly blacklisted those who are against the controversial Orphan Works bill from being able to engage in meaningful discussion and debate. Those representing artists are well-behaved, hygienically competent, and respectable - yet the Senate voted on it in a last minute ‘hot-lining’ wherein if a Congressperson doesn’t object in time, that they are counted as having voted for the bill. What? Really? And it sounds like the Senate hot-lined the Orphan Works bill last week, and the House of Reps is looking to do the same coming up (see below).

Which is why we’re asking you to check out the links, especially the Capwiz links that have Click&Send letters you can send to your congressperson in under 2 minutes, either use their template or write your own so that your own thoughts get conveyed. Apparently their aides do read this; when I phoned, they were respectful and familiar with my prior emails and letters (whoa!) so it’s worth a shot.

Okay, so that’s my long-winded intro since I know some friends have been asking what this is really about (thanks for helping me see the blindspots in our fervor

Here’s the summary from the Illustrators Partnership leadership (great sincere folks - Brad Holland and Cynthia Turner, who have been working on this and paying for things out of their own pockets including trips to DC and legal counsel for the past several years now).

Please note that the Graphic Artists Guild (whom you’d think would be a great ally in this, and of whom I used to be a member) is unfortunately a “foe” on this one - as they have been in support of the Orphan Works bill for reasons that can massively benefit them financially. While claims of the Guild receiving questionable “kickbacks” and “illegally collecting international royalties on behalf of their members but not paying them to its membership” are still being substantiated - stuff still being investigated but that looks pretty hairy on their part, it would seem that they may have abused that power and taken advantage with a strong profit-motive in supporting the Orphan Works bill even as it hurts their own member artists, photographers and designers.

Since then, over 75 international creators’ groups oppose the Orphan Works bill now set to be voted on by the House of Representatives, and we’d love your help, even if it just means clicking a button on your browser if you think Congress should vote against this.

In the middle of all the other bailout bill hullabaloo, do we really want something that will destabilize our economy further, by wiping out independent small businesses (sometimes one-person businesses) that provide jobs and create revenue within the network of companies that use original work to make products, entertainment, services that create income for value added along the way? Without exclusive right to use our own creations, and deciding who gets to use it and how, we cannot establish the market value on our work if it has become part of the public domain. Sure, so some creators lose out on their personal profits, what a bunch of whiners we are, right? haha - but after awhile we may not see those creators sharing their work with the public any longer if it just ends up getting stolen. Or sharing only the lamest of their work that they don’t care about getting stolen.

Do we really want the art we see and the music we hear to be offshoots of paid advertising, who will be among the only ones compensated for making the stuff we experience on a day to day basis? Take away originality because compelling the makers of it to share it with collective whole will drive it underground. Bit heavy-handed I bet, but I guess as far as the long term effects on our culture, I don’t see the passing of this Orphan Works bill as anything good for us. Would you be willing to help me continue getting the word out to help stop this? (Again, it can be easy or as detailed as you wish - thank you for considering it!

So here’s why I’m writing - would you be willing to help me find more people in other states/zip codes (and yes, even other countries!) who haven’t yet written in, and if they’re interested, get them ready to oppose it again coming up?

If you are open to it, please add yourself to the private (non-ad-spam) IPA immediate notification list so that when they get quick-word that we need to send stuff that you’ll be among the first to know (I can forward stuff to you if you like, but the delay may make us too late if it really is working as sneakily in Congress with those hot-lining deadlines as it seems to have been so far- oof! Thanks!)

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place “Add Name” in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

They usually have Click&Send letters for those not sure what to write, and definitely opportunities to voice your own opinions if you want to.

Here are the links (also in the IPA notes below):

Over 75 organizations oppose this bill, representing over half a million creators.

U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world’s artists.

INTERNATIONAL ARTISTS please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard Operator “I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act.” The switchboard operator will patch you through to the lawmaker’s office and often take a message which also gets passed on to the lawmaker. Once you’re put through tell your Representative the message again.

Just hoping to add a bunch new people in different states and districts ready to press the send button on short notice when it’s time to e-protest - haha! I’m so cheesy! (no flag-burning necessary, just a rebel from the comfort of your own home)

Thank you again for your help in getting the word out as quickly as possible so we can be ready to hit ‘em with voluminous protest when the moment comes. We shall overcome! haw!

- Michiko Stehrenberger (www.michiko.com)
Seattle, WA