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     Here's where you'll find my Coloring Page Tuesdays, contributions to Illustration Friday, Blog Book Tours (interviews with authors and illustrators), movie and book reviews, marketing and illustration tips under Method, Events and Big News (mine and the industry's), and general things I just find interesting. Enjoy!

Wednesday, June 18, 2008

Orphan Works Bill

     I don't usually talk about politics on my blog, but this particular issue directly affects me as a freelance illustrator.
     Have you heard of the Orphan Works Legislation that's been sneaking through the House of Representatives? Well, if this Bill goes through, it could directly affect my business - not in a good way. Right now, when I create, I own my creation. It's an automatic copyright. Seems logical. I created it so I own it.
     I make my living by people paying me to use my art.
     But sometimes when a person wants to use a piece of art, nobody knows who the artist is, or they can't find them. That's an Orphan work - a creation (music, art, a photograph, etc.) who's creator can no longer be located and therefore permission cannot be saught or compensation offered for usage of their work. Orphan works do exist, and libraries and schools do have legitimate reasons for wanting access to be able to use these works.
     But that's not what this Bill is about. It started out that way but quickly morphed into a way for commercial businesses to use artwork without much research and without much recourse for the artist.
     Here's the gist: Let's say there's a big t-shirt company (I mean really big) - that wants to use a piece of art for their company logo which they found on Google Images - a great sketch of a happy sun - they want to use it on everything they produce.
     They can do what they call "due diligence" (this term has not been defined in the Bill) to find the artist, and if they can't find the artist, they can declare it an orphan work and use it anyway.
     Say the artist finds out, because the image is now in every store in America. The artist can sue the company for damages, but there's a cap on how much the artist can sue for (not a very high cap).
     And here's where the Bill protects the abuser and not the artist: the Bill is so loosely defined, loop-holes abound, and if the big corporate lawyer is better, and more powerful than the lawyer a poor little freelancer can afford - the company doesn't have to pay the artist a dime and the artist is out the legal fees they spent and time wasted (which translates to income in a freelancer's world). Most of the time it will literally makes no sense for an artist to go after an abuser (this is true even in today's system).
     One argument to protect artists against abuses is to create a database for all works to be registered. Sounds logical? Well, this database does not exist yet. The software to search the work in a database does not exist yet. (I'd like to see it search for abstract art.) Whether or not this would be a non-profit or profit driven database has not been determined.
     In other words it could cost me money to register every single thing I draw or I don't have any rights to my own creations.
     Let's say that unlucky artist drew that happy sun on a cocktail napkin - there's nothing in this Bill saying how much that artist would have to pay to register that cocktail napkin.
     Reality check - people illegally download my work for their personal use all the time. Yes, I make my coloring pages available and free for non-profit uses, but I have other images on my website that have been downloaded literally hundreds of times (I can follow this in my stats) - work that I never gave permission for and was never compensated for.
     So why do I have my artwork online? Because I'm a freelance illustrator and to get new work, I have to advertise myself with an online portfolio. So while it's really rotten, theft happens.
     Beginning to get the picture? This Bill protects the abuser, not the creator. It could severely cut into my ability to charge for what I do and how I make my living.
     So what can you do to help stop this Bill from going through? SIGN HERE. Our biggest enemy on this legislation is that nobody has heard of it. One Congressman supposedly thought it was about orphan children. Another was quoted as saying "we must protect the consumer" (implied: not the creator). What!?
     So, please SIGN HERE. It's time to get as many people aware of this bad legislation as possible and start shouting about it to our representatives. The ability for me to continue creating art could hang on this - so please go SIGN.

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Blogger elysabeth said...

I signed the petition - I'm #3940 - I stand behind the artists having a son who is an artist and now having books coming that are illustrated by a freelance artist and the fact that there aren't enough artistis around (the really good ones) to illustrate all the children's books out there. One guy made a valid point on his comments - about them (legislators) sitting on their arses all day and dreaming up stupid stuff that does not even affect them - it's not unusual for government to waste money on things dreaming up stuff that they know nothing about - I'm with you - E :)

8:47 AM  
Blogger Mary Cunningham said...

I signed, Elizabeth. Thanks for bringing this to my attention. Although not an artist myself, I have friends (including you!)who are.

11:19 AM  
Anonymous Summer Fey Foovay said...

Thank you for blogging about this. I was unaware of it - and like you I put a lot of artwork online. Some is for free, coloring pages and clip art, but even there I do like credit and a link back. I'd be highly unhappy to find it on a t-shirt without my permission or payment. I will pass the word along -

11:56 AM  
Anonymous Anonymous said...

You might want to check this out. Brian Sherwin from the Myartspace Blog interviewed Alex Curtis from Public Knowledge about the Orphan Works bill. If you read it closely you will see that Alex contradicts himself several times.


11:12 PM  

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All Artwork © Elizabeth O. Dulemba,  - Y'all play nice, okay?