An Upset Artist Writes to the Guild

Our Response

The Orphan Works legislation has stirred up a storm of emotion, and the letter that follows is just one of many we’ve received.

Please read the entirety of the letter we received and our response by following this link. 

Dear Ms. Mistretta:

Thank you for your post at Orphan Works News. Your letter tells a compelling story.

Andrea, there’s no doubt that you did all the right things and got taken advantage of anyway. As a long-term commercial artist myself, I understand what that feels like.

My role as the president of the Graphic Artists Guild is not an easy one, and as I’ve said before, I truly wish Orphan Works never came into existence. The first version of the bill three years ago was much worse than the one we have now, but as we consulted with attorneys, lobbyists, other creative group representatives and lawmakers, something became very clear to us – there is almost no chance Orphan Works legislation will be stopped in its entirety.

We were simply outnumbered by better-funded interest groups that support it. This was the reality for the first bill, and it’s the reality for the current iteration.

As Guild president, I had to quickly face the reality that Orphan Works will happen sooner or later. It might have been very dramatic to shout or angrily shake my fist in a show of political theatre, but I have a heavy responsibility that I take very seriously. I didn’t have the luxury of being an angry artistic man, because I saw the landscape for what it was and continues to be. I had to get the best deal possible for the industry I’ve dedicated my entire life to and that I love. I assure you I would have been far more popular and slept many more nights in the past three years if I had chosen to simply stage the periodic public temper tantrum, but I had too much real work to do for that.

My only option was to see to it that the bill contained as many protections and caveats as I could manage to get in there for my fellow artists. We hired an intellectual property attorney as our lobbyist and attended more meetings and teleconferences than I can count with decision-influencers and lawmakers at all levels.

The Guild and its lobbyist pressed for a dramatic scaling back of the legislation to archival uses, or to certain non-profit and non-commercial uses, but those ideas got no traction despite our intense efforts – in fact, they were rejected out of hand.

Next, we turned to pressing for less massive changes. We pressed for a Notice of Use clause; we pressed for a useful articles clause; we pressed for a light archive to be held at the Copyright Office and many other provisions. Some of these efforts were rewarded and others were not, but the Guild was in that fight every single day. More importantly, we were respected in our fight and listened to, especially by members of the House subcommittee chaired by Representative Berman.

We acknowledge these compromises are not perfect. But after 40 years of negotiating experience, we believe this is about as good a version as we’re going to get, and delaying it further is not to artists’ benefit. It’s entirely possible that a worse version of the bill could be passed in the future that would do more damage to the industry because neither of the legislators or the Copyright Office are willing to rewrite a kinder bill.

Let’s be very clear – the Guild does not like Orphan Works legislation, and we’re certainly not pushing for it. That said, when the end game became apparent, we had a choice between atrocious legislation and slightly less atrocious legislation. We made the best choice for artists, and asked them to support the House version of the bill, H.R. 5889. If that choice hadn’t been made, the Senate bill would surely have been enacted into law last month.

I’d also like to make clear that the Guild adamantly opposes the Senate version of the bill, S. 2913, specifically because it lacks the Notice of Use clause.

We have no interest in pointing fingers or fragmenting the industry based on unsubstantiated accusations or rumors, because that only reduces artists’ collective influence and strength. The organization I preside over owes its existence to a strong and vital graphic arts industry, so the idea that I would do anything to deliberately injure our business fails to even qualify as being valid.

The Guild will continue to fight for artists every day in every way possible by being part of the process.

With Warm Regards,

John P. Schmelzer

Original Letter:

AN OPEN LETTER TO THE GRAPHIC ARTIST GUILD
Graphic Artist Guild President
October 8, 2008

Dear Mr. Schmelzer,

It has been remarkable to watch the Graphic Artist Guild steadily support and push a copyright bill that will devastate artists around the world, and now read that you disparage artists that fight to prevent the loss of exclusive rights and irreparable harm this law will cause. Now, the Graphic Artist Guild has earned the shameful distinction of being publicly praised as “enlightened’ by Gigi Sohn of Public Knowledge, the Washington D.C. public policy maker and Orphan Works lobbyist that is committed to a 6 point plan to dismantle creator rights.

On October 6, 2008 Gigi Sohn wrote:
“At the same time, the more enlightened of those artists saw that the world around them was changing and that it was perhaps time to take matters into their own hands to ensure that their works wouldn’t become orphaned.

Here’s what the President of the Graphic Artists’ Guild had to say on that point:
‘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.
See Fullpost: http://www.publicknowledge.org/node/1783)

Mr. Schmelzer, I have been a sole proprietor, small business entity since 1979. I am one who has diligently registered my copyrights and spent thousands of dollars and hours over the years doing so. I already protect and manage my copyrights, responsibly negotiate contracts, uphold best business practices and understand the market.

My name is Andrea Mistretta. As a licensor of my art, the clients I serve have the security of knowing they are protected through the indemnity clauses in my contracts. My visual example in the Small Business Administration’s Economic Impact Study of Orphan Works prepared in September of 2008 is an example how my working art was “ORPHANED” by a “USER” and sold to one of the largest image banks in the world and sold again for a fraction of its value to an agency, then sold again to my client turning me into my own competitor while all those in the chain of infringements” copyrighted” my artwork, made money while I the originating artist received no compensation. My attorney knew he had the support of my certification of copyright to work toward justice and settlement on my behalf. Without copyright he could not have enforced my rights, and I would be out of business. There would be one less independent original thinker and artist in this country.

Under the Orphan Works law that the Graphic Artist Guild and Public Knowledge support, even with my registered copyright I would not have the power to fairly negotiate with the giant corporate infringer who cynically stole my rights. I would not be able to stop the continuing infringement. I would not be able to enforce the exclusive rights I had contractually guaranteed to my client. I would have been denied all legal fees, court costs, and damages to enforce my copyright.

Does the Graphic Artist Guild really believe this law will not “have a dramatic influence on how we do business?”

If this is the new business model Gigi Sohn refers to, there will only be users, and no artist originators. My example is not an anomaly but a harbinger of what is to come if “Orphan Works” should pass.

I believed that the U.S. Copyright Office has been the registry institution living artist generations have paid into to register their works. U.S. Copyright law provided artists the necessary protection of common law copyright law as well as statutory copyright for registered work. Now this institution has turned it back on creators.

I believe there is a place for true Orphan Works in a well defined bill. This Orphan Works bill is nothing more than a license for “USERS” to take art at will.

To change copyright law to the Orphan Works language prior to this writing, is to destroy a business model and bastion of creative thinkers to produce fresh new works that support a delicate “eco-system” - the economy system that starts with the small businesses that support the larger business in this country and abroad.

Sincerely,

Andrea Mistretta
http://www.andreamistretta.com