Category: copyright

THIS IS URGENT – YOUR IMMEDIATE ACTION IS NEEDED

UPDATE (here).

The Senate is “hotlining” the Orphan Works Bill at this very minute, which means it could pass within the hour.

PLEASE CALL BOTH OF YOUR SENATORS IMMEDIATELY and ask them to either vote NO or put a hold on the Bill.

S. 2913: Shawn Bentley Orphan Works Act of 2008

Whether you’ve called before, or have never called, this is is the moment, the second where it counts. This cannot wait, you need to call NOW.

This could be your last chance to make a stand for the protection of copyright.

Here is a link providing contact information for Senators/Representatives:

http://www.visi.com/juan/congress/

Thank you,

Constance Evans
APA National Executive Director

Julia Graham
APA|NY Regional Director

Whether you think it’s art is irrelevant. Nancy Spector, Chief Curator at the Guggenheim decided that “Prince’s work has been among the most innovative art produced in the United States during the past 30 years. His deceptively simple act in 1977 of rephotographing advertising images and presenting them as his own ushered in an entirely new, critical approach to art-making—one that questioned notions of originality and the privileged status of the unique aesthetic object.”

Whether or not you think it’s worth 3.4 million dollars is irrelevant. The value of a Richard Prince re-photograph has nothing to do with what’s depicted in the photograph. It has everything to do with the number of editions made (2 plus an artist proof in this case) and the reputation and stature of the artist within the community of collectors, curators and gallerists. Becoming the sole private owner of one of these photographs, when the other edition lives in a museum, is certainly worth millions to collectors.

You should embrace Richard Prince because he’s exercising a right all photographers enjoy and need. The ability to photograph copyrighted and even trademarked objects and sell the pictures for a use that doesn’t interfere with the copyrighted objects intended use–if he’d used those pictures to sell cigarettes then there’d be a problem. When you take a picture of a street scene and there are people wearing t-shirts with slogans, listening to ipods, talking on cell phones, billboards with advertisements in the background, cars, buildings and then you sell that photograph you don’t have to worry about lawsuits from all that copyrighted material.

I’m sure it’s not a very pleasant feeling to be the photographer (video of Sam Abell) who’s work Richard re-photographed, who now have to stand around and watch as their pictures hang on museum walls and set new records at auction. But, this is such a fundamental right photographers enjoy that without it we’d all be screwed.

ASMP is now calling for photographers to write their Senators after realizing the Senate version of Orphan Works has none of the changes they like in the House version and could still be passed into law the Senate version was changed for the worse. Here’s their statement:

“Call to Action on Orphan Works: ASMP urges you to contact your Senator in opposition to S.2913, the Senate version of the Orphan Works bill. Now is the time. We continue to support the House version, H.R. 5889.”

I think they both suck and have already written the Senate and the House.

Via, Photo Attorney.

H.R.5889
Orphan Works Act of 2008 (Introduced in House)

SECTION 1. SHORT TITLE.

This Act may be cited as the `Orphan Works Act of 2008′.

Continue reading

I was planning on spending some time looking at the Orphan Works Bill eventually but it appears that I may have missed the boat. Here’s a notice I received this morning:

UPDATE: It appears that the ASMP and PPA are in favor of the bill. Here’s a quote from an email I just received “Making a decision to support any Orphan Works Bill isn’t easy. However, both PPA and ASMP, the only two organizations representing photographers that have actively participated in these discussions, have determined that opposing the proposed House bill would place photographers at greater risk. We believe that supporting the House bill will prevent us from ending up with a law that is far worse.” Visit the ASMP (here).

Here’s the email from the APA:

BREAKING NEWS, May 7, 2008 – The House is meeting today 2:00 p.m. Wednesday, May 7, 2008, 2141 Rayburn House Office Building markup of H.R. 5889, the “Orphan Works Act of 2008”

This means that if you oppose the House Bill as it stands, it is extremely important to make your voice heard before that meeting begins.

At this time, it is understood that the House believes that photographers and other visual artists including their trade associations are in agreement with the current bills. APA opposes both the House and Senate bills as written.

Please take a moment to be heard via a prepared letter of your choice, or by including your own reasoned thoughts in a professional courteous manner.

This link (here) will allow you to be heard.
Scroll down about half way to see “For Photographers”.

It is important to be heard. It is your future.

Martin Trailer
National President

Constance Evans
National CEO

ORPHAN WORKS LEGISLATION IS BACK!

APA’s Position on the Orphan Works Act of 2008

From the onset, APA has been actively engaged in the effort to help solve the orphan works dilemma. We made public our support for the crafting of an amendment that would permit use of verified, i.e. true, orphaned works for certain uses, by way of procedures that are clearly defined in the statute or regulations, while retaining remedies for use by copyright owners in the event of abuse.

APA, in seeking to represent the best interests of its members, takes the position that the legislation offered in both bills — S.2913 and H.R.5889 — does not achieve the goal as we believe was originally intended, and instead provides a distinct road map for the infringement of contemporary works by living artists worldwide. If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.

Therefore, APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns. PLEASE go to this resource page on Orphan Works for sample letters (scroll down for the photographers’ letters) and the ability to automatically contact your specific members of Congress. Great thanks to the Illustrators’ Partnership for making this site available.

The full text of is available as a pdf download (here).

And both the House and Senate versions of the bill are available as pdf downloads on the APANational.com homepage here

Be informed. Be involved.

Thank you

APA National CEO
Constance Evans

APA National President
Martin Trailer

Teens appear to be willing to curtail illegal downloading when told they face fines or jail time.

This finding, among many in a survey published by Microsoft (NSDQ: MSFT) on Wednesday, is the basis for the software company’s new campaign to teach teens respect for intellectual property rights.

[…]Microsoft’s survey found that about half of the teenagers surveyed (49%) said they are not familiar with the rules and guidelines for downloading content from the Internet. Only 11% understood the rules well, and of those, 82% said downloading content illegally merits punishment. Among those unfamiliar with the law, only 57% supported punishment for intellectual property violations.

[…]Nevertheless, Microsoft wants to correct teens’ woeful ignorance. To do so, it has turned to Topics Education, a developer of custom curricula, to create a curriculum called “Intellectual Property Rights Education” for middle school and high school teachers. The Microsoft-sponsored curriculum consists of Web-based resources and case-study driven lesson plans that aim to engage students about intellectual property issues.

Read about it (here). Via, Slashdot.

Cory Doctorow of Boing Boing fame has a story in the Guardian (here) yesterday about distinguishing between cultural and commercial uses of copyrighted material. He makes a good case for creating an exception in the law for low end cultural use of copyrighted material, stuff that goes on everyday that’s tolerated by everyone because there’s really no benefit to going after violators. Of course, this would never be a problem if we didn’t have the internet to distribute all this material to millions of people.

Through most of copyright’s history, we had two de facto systems: industrial regulation (governing what big companies did with each others’ stuff) and folk-copyright (the rules of thumb that most of us understood to be true).

[…] We need to stop shoe-horning cultural use into the little carve-outs in copyright, such as fair dealing and fair use. Instead we need to establish a new copyright regime that reflects the age-old normative consensus about what’s fair and what isn’t at the small-scale, hand-to-hand end of copying, display, performance and adaptation.

This makes sense to me for a couple very important reasons. Your average citizen doesn’t understand or care about copyright and when an overhaul comes in the form of either a vote or some type of legislation we’re going to have a hard time convincing people that they shouldn’t do what they’ve always done. Also, giving up low end fan violations will prevent the erosion of fair use and keep other less desirable uses from getting in that door.

A commenter on Boing Boing (here) pointed me to this excellent article published in the February, 2007 issue of Harpers (here) by Jonathan Lethem.

It’s worth noting, then, that early in the history of photography a series of judicial decisions could well have changed the course of that art: courts were asked whether the photographer, amateur or professional, required permission before he could capture and print an image. Was the photographer stealing from the person or building whose photograph he shot, pirating something of private and certifiable value? Those early decisions went in favor of the pirates. Just as Walt Disney could take inspiration from Buster Keaton’s Steamboat Bill, Jr., the Brothers Grimm, or the existence of real mice, the photographer should be free to capture an image without compensating the source. The world that meets our eye through the lens of a camera was judged to be, with minor exceptions, a sort of public commons, where a cat may look at a king.

[…] A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. In this regard, few of us question the contemporary construction of copyright. It is taken as a law, both in the sense of a universally recognizable moral absolute, like the law against murder, and as naturally inherent in our world, like the law of gravity. In fact, it is neither. Rather, copyright is an ongoing social negotiation, tenuously forged, endlessly revised, and imperfect in its every incarnation.

The bottom line here is that it’s not going to be long before we see either legislation or a court ruling and photographers need to do whatever they can to achieve the best possible outcome.

Oh boy, a debate over copyright and fair use in the NY Times bits blog (here) between Rick Cotton, the general counsel at NBC and Tim Wu, a professor at Columbia Law School.

RC: Fair use in the digital age is the same as fair use in the non-digital age. The fact that digital tools make it easier to use other people’s work doesn’t affect the analysis of whether that use is fair. Generally speaking, if you are making fun of, criticizing or commenting on a work (and not just reproducing or copying it), courts have found that you can use the work only to the degree necessary to make your point about that work.

[…] fair use is not a “right,” a misconception and misstatement frequently made these days. Rather it is an exception to the copyright owners’ exclusive rights to determine how their expression is used in new works.

TW: …it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use.

[…] We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect.

Here’s what I think, all these people, who wish for copyright reform, so they can practice their “art” will be begging for forgiveness when all the corporations get tired of trying to protect the works they paid to create and instead decide to step into the online world and stomp the living shit out of everyone by employing thousands of salaried creative people to repurpose every uncopyrighted piece of material into some entirely forgettable eyeball splitting video.

It’s beyond my comprehension why people wouldn’t want original material they created protected under copyright law. Maybe readers can show me a reuse of someone’s work that adds value to this planet?

I have a feeling I will end 2008 with the same headline on 52 posts. Well, I don’t give a crap. We can stand around and whine as all the little bitches who have nothing worth copyrighting tell everyone who’s listening that the law is outdated and oppressive or we can go out and defend it.

First off, I like where Dan Heller is headed in his post Gaming the Creative Commons for Profit. Dan’s attitude in general, with copyright violation is, you can pay the licensing fee or you can steal it and I’ll collect a fee in court and I don’t really care either way. Badass. He furthers this idea in his Creative Commons post by broadcasting the fact that if you register your images with the copyright office, load them into flickr with a CC license, wait for people to pick them off and suddenly revoke the license you can collect a windfall of easily enforcible copyright violations.

It’s sort of a reverse psychology for all the numb nutz out there. Publicly declare how much money you can make off people misusing the CC license and you will eventually scare everyone away from even trying. He’s got a huge audience so I don’t doubt this idea has legs.

Next, is a story Cameron Davidson pointed me to in the Washington Post yesterday entitled “Hey Isn’t That…” where Monica Hesse investigates corporations stealing photography off the web . The irony of the whole deal is how these companies vigorously defend and display their copyright but then occasionally steal from unsuspecting photographers online and when caught blaming the whole mess on an intern or photo assistant (yeah, tell me about those goddam photo assistants buddy; ).

Good ole L.L. defends the amateur?:

Says Lawrence Lessig, the Stanford legal scholar who created Creative Commons, when asked about the issue of corporations borrowing photos: “There’s really no excuse for [these companies] except that they think it’s not important to protect the rights of the amateur.”

Whoa, looks like double L wanted the CC to still protect authors rights. Don’t think you can have it both ways buddy.

This might take awhile to shake out but for now I think it’s important for people who have something worth copyrighting to voice their opinion wherever they can.