The principle of post-monetization says that nothing is worth anything until somebody wants it. Those of us who make art for a living essentially operate — outside of commissioned work — on this principle. We make the stuff and put it out there. When somebody decides, for whatever reason, that they want it, then the amount they are willing to pay is exactly the value at that time. If we choose to resell, reproduce or replicate, that’s our business too. We still own the copyright.
The convention of putting a little c with a circle around it became redundant in the U.S. in 1976. In current copyright law, every drawing, painting, photograph, poem or play is simply owned by you, the author. If somebody swipes it, or uses it without your permission, you have the law on your side to chase them down and get paid.
That’s why the current Orphan Works Act now being considered by the U.S. Congress is particularly baffling. Promoted by dough-head non-artists who are obviously listening to big-time lobbyists, this bill says that you the artist must now officially register every single work you wish to protect. The online registries, presumably fee based, haven’t yet been established.
Big boys like Disney have always felt the necessity to register copyrights. Can you imagine what’s involved in owning and protecting Mickey Mouse? That’s why I’m calling this the Mickey Mouse Bill. It continues to protect Mickey but leaves little guys like you and me with another layer of paperwork and expense. While in the guise of a last-ditch attempt to locate and release unclaimed (orphaned) work, in my opinion this is very bad legislation indeed. If someone can tell me the possible value of the Orphan Works Act, I’d really appreciate it.
Post-monetization is our life blood. The choice to defend an extant work should always be in the hands of the creator or his assigns. That’s why the current law works so well. A few years ago, a car company decently asked me if they might use one of my (already sold) paintings in the background of a car ad. I named a reasonable fee and they readily agreed. We used a “one time only” contract and we didn’t even use a lawyer. If the Orphan Works Act becomes law, Mercedes-Benz, without an author’s prior registration, could just help themselves. No ask. No pay. Nutz.
PS: “The problem is that very few of the billions of images will ever be registered. No artist that I know of has the time to pull out every work of art they have ever produced and register them with all the upcoming electronic databases.” (Mark Simon, artist advocate)
Esoterica: The advent of the Internet has been somewhat responsible for this turn of events. Some pundits think we’re about to enjoy the sunset of copyright. As it is, Chinese artists are ripping jpegs from the Western Internet, cloning and reselling our stuff like crazy. We can’t get at them because they’re in another jurisdiction. Now the U.S. wants this in their jurisdiction? Nutz. In the meantime, the big boys like Google and Microsoft would like to see Mickey Mouse happen. They’ve got the deep pockets to get what they want. I don’t know about you, but I haven’t, and besides, I don’t like filling out forms.
Write to your representatives
by Coulter Watt, Quakertown, PA, USA
This is indeed vital legislation for all artists to take political action on. It’s vital that every US artist contact their Congressmen and Senators regarding this ill-conceived bill. The squeaky wheel gets the oil and numbers count. So I encourage everyone to write their representatives and tell them that the proposed Orphan Works Act puts their livelihood in jeopardy. The Orphan Works Act of 2006: Bill Number: H.R. 5439, is sponsored by Rep. Lamar Smith (Republican, Texas), chair of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property.
(RG note) Thanks, Coulter. So many artists wrote to ask what they can do about this. The answer is to be informed, understand the issues and their consequences, and to write or phone your representative. We artists and arts advocates can see what the politicians can’t. See letter below.
Online info on the bills
by LC Neill, Lake Norman, NC, USA
To read more about the Orphan Works Bill and get a better understanding you can access these sites: Article about the issues by Mark Simon — Animation World Magazine. Audio Interview with Brad Holland — Artist and formed IPA interview from Sat April 5, 2008. Audio Interview with Alex Saviuk, famed Spider-Man comic artist regarding the Orphan Works bill. Illustrators’ Partnership of America — Orphan Works resource page.
The actual bills in Congress introduced originally 2006 and again on April 24, 2008: H.R. 5889 The Orphan Works Act of 2008 and the S 2913 The Shawn Bentley Orphan Works Act of 2008.
Please take a moment and write your congress person and be sure to include the H.R. 5899 and S. 2913 Orphan Bill Numbers. ( Find your representative and find your Senators).
Take action, write your letters and send this information on to every artist (writers, photographers, illustrators, visual artists etc.) that you know. Let your voice be heard! It’s ridiculous that an artist would have to pay to “own” their own creation.
Who lobbies for us?
by Carole Pigott, Santa Fe, NM, USA
The problem is that artists have no significant lobbyist, so those who have turned creativity into consumerism are destroying what little legal structure there was to protect our rights. What would the artists’ world be like if we had the same rights and protections as musicians and actors, if we had a percentage of the resale of our works, or if we had someone fighting for our rights. Instead they freely take away our tax incentive to donate and only allow the material costs to be deducted, galleries close and disappear with your work, (or never pay) safe in the knowledge that the expenses of going after them is much more than the value of the piece.
Throw the scoundrels out!
by Peter Lloyd, Blacker Hill, England
Governments love this kind of legislation — another Department for a political hack to be appointed to at a fat salary AND inflation-proofed pension, plus dozens, maybe hundreds, of officials performing mindless routine clerical work, at good salaries and more inflation-proofed pensions — unproductive costs piling up for the future. Don’t let it happen! Over here in the UK we now have more than half of the population working for the Government one way or another, on just these sorts of useless activities, with the other half paying over 50% of our income to maintain them. We’re drowning in useless paperwork. We have forgotten how to actually make stuff that people want, like refrigerators, TVs and MRI scanners. Let this be a lesson to you! Throw the scoundrels out!
(RG note) Thanks, Peter. So far we have received no correspondence from visual artists who are in favor of Mickey Mouse. I am encouraging people to read the proposed acts. Please feel free to add further insight and opinion in the instantaneous Live Comments below. We will pass all material received on to the proper authorities, so your opinions will be heard.
Affecting online representation
by H Margret, Santa Fe, NM, USA
If the wealthy and influential artists like you don’t oppose this legislation, it will go through and cause the recognized artists a lot more trouble than those of us whose work is not valued. It will also provide a lot of free design work to all those big and small companies who pirate art and design. They will make tiny changes and use whatever they want, paying no one. I am writing my representative to oppose this. The really interesting results will be seen on the Web, where posting art will become dangerous financially to an artist when our work will be freely used. It will destroy the value of websites.
Educating your representatives
by Pam Craig, Memphis, TN, USA
How do we stop the nonsense? Emails are flying with suggestions and numbers and how to.
I actually followed the suggestion of one email and called my representative. The response was “What? Have no idea what you are talking about.” Great, I have a representative who isn’t in the loop, who therefore has no possibility of making it known from this area that this “Mickey Mouse Bill” hurts one or many of his constituents. So Robert, how does one individual get with others, get noticed and possibly stop the nonsense of this bill? Like you, I do not have mega bucks to fight the Bill Gates, Disneys or even the Hanna Barberas, who might think this is a great idea. So where do we go for the little voice?
Do you know how bad Disney really is? I know a guy who worked for them but when he left he was not allowed to state that on his resume since they consider that a free advertisement for him. I also read about a kindergarten class in rural Canada who had to repaint their walls because of a Mickey mural. Can you imagine how much it must cost to track down those things? Based on those stories I would not be surprised if you get a phone call asking you to remove any mentions of Mickey from your letter.
by Patrick Watson, Gold Coast, Australia
I couldn’t agree more with your comments, in fact I would have to go much further and say if such an act as the ‘Orphan Works Act’ comes into play then it might spell the end to any budding artist wanting to become a professional artist. Already, any pro artist must fight hard for recognition, find suitable galleries to display his or her work and at the same time hope they are not being exploited. The artist must create the art work, in most cases frame it then understand that most galleries will want to take a large percentage, as high as 50%. Now instead of the artist owning the copyright we are being told the new bill being suggested will make it near impossible for any struggling artist to protect their work from being used by any individual or organization. Unless you are one of the few wealthy artists it would be simply impossible to register every single work. Once again the poor artist is the one who must pay up or suffer the consequences. I say that for once we artists must stick together and fight against the ‘Orphan Works Act’ and stop it becoming law.
I live in Australia but sell my work around the world including the United States. It doesn’t matter where you live and work, if such an act was introduced it would indeed affect us all. I call on artists everywhere to stand up and strongly oppose this mindless piece of legislation.
Orphan Works and the IRS
by Diane Fleming, British Columbia, Canada
It should be up to each artist to decide what and when they want to copyright their work, through a law firm of their choice. Even if this new Act came into effect, one would still need to hire a lawyer to go after the copyright violators. Then why would I have to pay a government body that will gladly take my money but sit on their hands when I need help with a violation resolution? Further, the “Orphan Works Act” is a slap in the face of the right to privacy. Oh!, but IRS, and possibly CRA (Canada) in a not so distant future would have fun checking to see if we declare the income we bring in on the sale of our paintings. This so-called “act” smells of hidden agenda, don’t you think? So now, not only would we have to pay to register our work, but we would be under the constant scrutiny of “Big Brother.” Excuse my skepticism but, time and again, dishonest government reps have figured out ways to profit from honest taxpayers. I would be greatly concerned about grand theft of valuable work. If art work has to be registered under the Orphan Works Act, I wonder if we would also have to declare where the art work is located i.e. name and address of the purchaser. See where I’m going with this?
A bunch at once?
by Tom Pirozzoli, Goshen, NH, USA
I’m no copyright expert but have copyrighted several hundred songs. In the song world it is possible to copyright groups of songs as a collective work. I do not know if this can be done for pictures or not, but would think like-rules apply if anyone wished to try.
(RG note) Thanks, Tom. It doesn’t seem that the initiators of this bill have worked out the details. I was unable to find reference to registering and protecting a whole bunch of images at the same time — say a year’s work or the images in a solo show.
by Peter Heineman, Morrison, CO, USA
Perhaps you could create a petition and post a link to it on the Painter’s Keys Website. Since you are in contact with so many artists, perhaps the sheer number of responses would indicate the opposition to the proposed Mickey Mouse Bill. This petition could go to Senators, Congressmen, and the sponsors of the bill.
by Roger Asselin, St. Petersburg, FL, USA
Regarding the Orphan Act Bill, I’m all for simple, especially on the paper work end of things. In addition to my art, my wife and I are song writers, musicians and sing. The copyright laws for music are a royal pain and the pay off to unknowns (the little guy) is zero. It will be the same for other artists in all fields if this bill goes through. Copyright forms and fees are time consuming and expensive to deal with. The way I look at it is that we do all the work and pay them to keep a record.
In all honesty, My thought is that some group has a made up their mind that they are going to get the Orphan Act passed no matter what. It looks like it may pass as early as the Fall of this year if not stopped. Visit OrphanWorks.net for more information, the latest updates, commentaries, etc. Pour yourself a coffee and fix a lunch before you start.
The ease of manipulating online work
by Debbie Grogan
I am a licensed artist and take a classes from Laura Whitesides Host, a subscriber to your newsletter. She forwarded your response to her regarding the Orphan Works Bill. The bigger picture here is that if these bills pass, it will affect every artist in the country whether or not you sell your work, license it or not. You are correct when you say our work is automatically covered by copyright law, however if some one uses it without your permission or infringes on that copyright, you have the right to legally go after them, but the work at that point must be registered with the copyright office of the government for you do do so. This bill would make it impossible for artists like myself to register each and every piece of work as we have thousands of things in our files or on paper. The non existent registration companies will charge whatever they want for their fee and we will be forced to pay it- or suffer the consequences. The technology is out there to take things off the Internet and use them and this bill passing will make it easier for it to happen here in the US. The folks behind this are the sites that have images posted for free like Getty and iStock Photo. They want more images on their sites because they will make more money each time they are downloaded. I wouldn’t be surprised if they were already creating their own “registration” sites as well in preparation for those who would need to do this if it passes. The sad thing is most artists do not think it applies to them but they couldn’t be more wrong! I have gone to Laura’s website, right clicked and saved one of her images, I then scanned it with my Epson high res scanner and enlarged her little jpg to 16×20, I Photshopped her name out and added “Mickey Mouse”. I am taking it to class today to show her just how easy it would be to do this and how vulnerable her art is. At this point I can only say I know that if this bill passes it will heavily affect many artists who create for a living as I do.
The licensing industry is a multi billion dollar business and those who will lose the most will be smaller folks like myself. As fellow artists I would hope that even if you do not think this will affect you (and I guarantee you, it will) that you at least be courteous and supportive of you fellow artists that will be truly affected and write your local representatives and ask they vote no.
Enjoy the past comments below for Mickey Mouse Bill…
You may be interested to know that artists from every state in the USA, every province in Canada, and at least 115 countries worldwide have visited these pages since January 1, 2013.
That includes JoRene Newton of TX, USA who wrote, “If we have to spend our time registering our works we wouldn’t have time to create!”
And also Theresa Bayer of Austin, TX, USA who wrote, “There are two orphan artworks bills before the US Congress: S. 2913 and H.R. 5889. I guess you’ll have to include Donald Duck in with Mickey Mouse when you talk about Orphan Artworks.
And also Margaret Henkels of Santa Fe, NM, USA who wrote, “We are scheduled for a correction that dwarfs the Depression. They actually think they can finance Iraq and other military projects with such fee-based revenues. Myself, I will pull my website and return to the old ways of doing business.”
And also Shirl Parker of Brownsville, TX, USA who wrote, “The Orphan Works Act attempts to offer options to would-be publishers and others who have exhausted all efforts to find authors in order to get permission to use.”
And also Susan Gallacher-Turner of Portland, OR, USA who wrote, “Don’t call it the Orphan Works Act. Call it stealing.”
And also Lynda Lehmann of NY, USA who wrote, “I urge everyone posting on the Internet to upload images under 600 pixels wide, and with a clear copyright directly on the image.”
And also Joseph Jahn of Denmark who wrote, “That’s exactly why it’s being done. So that Disney can keep on stealing from artists, as they have done for years.