A Message from the President

Dear Guild Members and Colleagues,

This morning I received a number of emails related to the horrors of the Orphan Works bill. As someone who has worked for the last three years to get the best possible outcome for this legislation, I can honestly say that I wish there would be no change to our copyright law.

But that’s not the reality. The artistic community just has to get real about this Orphan Works scare. Orphan Works won’t put us out of business any more than the “all rights” contract did when business reacted to the Copyright Law of 1978. And it’s quite possible that the entire episode might serve to put us on notice that art is a business and should be treated that way.

Orphan Works will not go away, because too many stakeholders are behind it. Delaying its passage runs the risk of getting a less sympathetic Judiciary Committee membership in the next Congress to draft a far worse version. By simply refusing to negotiate realistically within Washington circles, we could lose our seat at the legislative table to influence future issues. For 40 years, the Guild has brought responsible leadership to the legislative table earning artists a position of respect within government circles. It would be foolish to gamble that respect on a “fight to the death” struggle
over Orphan Works.

The original single-page Orphan Works proposal released by the Copyright Office in January 2006 has expanded to 20 pages as the result of the many additions and concessions the Guild and other visual creators groups fought long and hard to get. Among the most significant victories in this three-year struggle is the exclusion of “useful articles” that prevents infringements of artwork on items such as t-shirts, dishware, wallpaper,
gift wrap, shower curtains, etc., from being covered under the legislation.

The Guild has promoted the “Notice of Use” provision among lawmakers as being a fair compromise to exclude bad actors making false orphan work claims, and if the Notice is public, to provide artists a way to self-identify as copyright owners if a user ever designates their work as an orphan work. The Senate version of the bill doesn’t include this vital clause, but the House version does, and that’s why the Guild can and does support the House version of the bill in the same manner as the American Society of Media Photographers (ASMP) and the Professional Photographers of America (PPA). It’s a difficult choice, but most business decisions are.

I don’t think Orphan Works is going to have a dramatic influence on how we do business, but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.

Together, we can build a strong and vibrant industry. Orphan Works is not the first business challenge we’ve faced, and it certainly won’t be the last. We have to unify as a community to meet these challenges head on, to develop better business practices and standards, and above all, to remain engaged in the halls of government as a responsible and respected constituency.

Want more? Visit our blog, www.orphanworksnews.com; or dial (712) 432-1284, enter access code 953763#, and listen to the recording of the May 5, 2008 conference call with our lobbyist, Megan Gray; or visit the ASMP web site.  

Till next time.

John P. Schmelzer
Guild President