The deadline for Reply Comments to the Copyright Office is this Thursday, October 1.
If you've already written them a letter, this is your chance to add additional weight to the case for artists' rights. If you missed the July 23rd deadline, this is your second chance to speak out on the need to retain the full protections of US copyright law.
Several people have requested a sample letter that they can either copy and paste, or as a model for their own letters.The sample below supports the comments submitted to the Copyright Office by the Illustrators Partnership. That letter is available in its entirety here.
September 28, 2015
Maria Pallante, Register of Copyrights
US Copyright Office
101 Independence Ave. S.E.
Washington, DC 20559-6000
RE: Notice of Inquiry, Copyright Office, Library of Congress
Copyright Protection for Certain Visual Works (Docket No. 2015-01)
Dear Ms. Pallante and Copyright Office Staff:
Thank you for the opportunity to reply to the initial comments generated by the Visual Arts Notice of Inquiry. As a working artist/illustrator, I support the comments submitted by the Illustrators Partnership regarding the Constitutional issues raised by the proposed orphan works legislation.
Article 1, Section 8 of the Constitution grants artists the exclusive rights to our work. It is my understanding that those rights cannot be abridged except by a Constitutional amendment. Yet the orphan works proposals the Copyright Office has recommended to Congress would abridge those rights. I could never again enjoy the exclusive right to any work I create if anybody anywhere is allowed to exploit it at any time, for any reason (except fair use), without my knowledge or consent. Because "orphan works" legislation would not be limited to true orphaned work, it would degrade every artist's exclusive right to a non-exclusive right. That would be a fundamental change to a Constitutional provision and I do not think Congress can legally alter the Constitution by means of a statute law. The Fifth Amendment to the Constitution creates another serious conflict. It states that no citizen's private property "shall" be taken by the government for public use without "just compensation." The work I create is my private property: Article I, Section 8 has established that. So if government lacks the right to confiscate it without just compensation, I do not see how it can grant that right en masse to the public.
The logic behind the Constitution's Copyright Clause should be self-evident: no individual can enter into any agreement to sell or license property – or dispose of it in any other fashion – unless he or she owns the property. To make the public part owner of every citizen's intellectual property – which is effectively what the proposed legislation would do – would make all contracts regarding the disposition of that property essentially meaningless. Orphan works infringements would therefore nullify millions of private business contracts between artists and the clients they've licensed work to.
When individuals knowingly interfere with the contracts or business affairs of others, it's called tortious interference and under the law there's a remedy for that. But here the interfering party would be the US government. Legislative immunity would, of course, exempt lawmakers from lawsuits for tortious interference. But by what right can they permit members of the public to interfere en masse with the contractual business affairs of each other on the slender premise that certain infringers may be ignorant of the economic or personal harm they're causing to strangers?
Proponents of the proposed legislation have stated that "good faith" infringers must be given "certainty" that if their infringements are detected, they will not be subject to penalties. And I agree that certainty in the markets is essential to the promotion of "Science and useful arts." Yet it is the current copyright system that provides certainty. Where creators exercise exclusive control over their rights and enter into voluntary agreements with known clients there is certainty all around. All parties understand the terms they've agreed to and with whom; and all parties are in a position to monitor mutual compliance.
By contrast, any legislation that voids an author's exclusive right would make it impossible for either creators or their clients to know who, where or on what terms any particular work is, has been or will be used by others. This would inflict total chaos in commercial markets. It would not only cause economic harm to creators, but to their clients across a broad swath of the economy.
On pages 50-51 of its 2015 Report on Orphan Works and Mass Digitization, the Copyright Office states that it “takes [such] concerns seriously, but does not believe that they outweigh the benefits of comprehensive orphan works legislation...”
Benefits? Benefits for whom? Not benefits for artists, who would lose their rights, but for infringers who would gain them!
For the sake of guaranteeing certainty to the sub-class of infringers in the secondary rights market, the proposed legislation would create perpetual uncertainty for creators and their clients in the country's primary markets. This would be a total reversal of the principle of copyright as expressed in Article 1, Section 8 of the Constitution; and with all due respect, a Constitutional provision cannot be reversed legally except by means of a Constitutional amendment.
Thank you again for the opportunity to express these thoughts.
The Return of Orphan Works: "The Next Great Copyright Act"
For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works.
Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership.
Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation.
Therefore we're asking all artists concerned with retaining the rights to their work to join us in writing. I'm especially asking everyone who posts here on Drawger to write, and if you would, to post your letters here as well.
Deadline: July 23, 2015
You can submit letters to the Copyright Office onlinehere:
Read the Copyright Office Notice of Inquiry here.
Read the Copyright Office's 2015 Report on Orphan Works and Mass Digitization here.
Here are the basic facts:
"The Next Great Copyright Act" would replace all existing copyright law.
It would void our Constitutional right to the exclusive control of our work.
It would "privilege" the public's right to use our work.
It would "pressure" you to register your life's work with commercial registries.
It would "orphan" unregistered work.
It would make orphaned work available for commercial infringement by "good faith" infringers.
It would allow others to alter your work and copyright those "derivative works" in their own names.
It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.
Background: The demand for copyright "reform" has come from large Internet firms and legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists.
The "reforms" they've proposed would allow them to stock their databases with our pictures. This would happen either by forcing us to hand over our images as registered works, or by harvesting unregistered works as orphans and copyrighting them as "derivative works."
The Copyright Office acknowledges that this will cause special problems for visual artists but concludes that we should still be subject to orphan works law.
"The Next Great Copyright Act" would go further than previous Orphan Works Acts. The proposals under consideration include:
1.) The Mass Digitization of our intellectual property by corporate interests. 2.) Extended Collective Licensing, a form of socialized licensing that would replace voluntary business agreements between artists and their clients. 3.) A Copyright Small Claims Court to handle the flood of lawsuits expected to result from orphan works infringements.
In your letter to the Copyright OffIce:
It's important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have "testified" that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.
So when writing, please remember: – It's important that you make your letter personal and truthful.
– Keep it professional and respectful.
– Explain that you're an artist and have been one for x number of years.
– Briefly list your educational background, publications, awards etc.
– Indicate the field(s) you work in.
– Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.
– Our copyrights are the products we license.
– This means that infringing our work is no different than stealing our money.
– It's important to our businesses that we remain able to determine voluntarily how and by whom our work is used.
– Stress that your work does NOT lose its value upon publication.
– Instead, everything you create becomes part of your business inventory.
– In the digital era, inventory is more valuable to artists than ever before. If you are NOT a professional artist:
– Define your specific interest in copyright, and give a few relevant details.
– You might want to stress that it's important to you that you determine how and by whom your work is used.
–You might wish to state that even if you are a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.
Because this is a complicated issue, we'll follow up next week with an expanded analysis and some thoughts of our own.
Advanced Life is a magazine published in Mexico by Acura Advance. In addition to a print version, they publish a digital edition that might well be a model of how magazines of the future will be delivered. It can be downloaded here.
Recently they contacted me and asked to do a cover story and interview about my work. It’s now out in their latest issue. Since the interview is in Spanish, I thought I’d post an English language version here. The interviewer was Tatiana Arce.
Q: You have said that Diego Rivera is one of your most important artistic influences, could you tell us why?
A: Two reasons. One graphic: the way he simplified forms, both in his drawing and in his compositions; and the other cultural: the way he reinvented modernism by stepping back from the abstraction that Cubism was leading art into and embracing as his theme the whole history and topicality of his culture.
Q: Are you interested in the work of any other Mexican artists?
A: Tamayo, Cuevas. I like them both for different reasons. And Posada, although I learned about him too late to be influenced by him. I discovered Posada by reading about Rivera. Diego cited him as one of his influences, so I looked him up too. After that, I came to think that Posada and I had a lot in common, except that I don't draw so many skeletons.
Q: The current image of Mexico, worldwide, mixes two separate aspects: one negative, regarding, corruption, drug lords and violence, and another positive, focusing on the economical growth of the country. If you were asked to illustrate this, what kind of images would come to your mind?
A: Well, pictures don't always come quickly. What I'd do if that were an assignment is internalize the problem, then empty my mind and start drawing. That's the best way to get answers. Or at least answers that aren't cliches. It's a way of getting past the structured thoughts of everyday life.
Q: You have often talked about your interest in creating images that are able to tell a story and stand on their own.
A: Well, I know I've said that I want pictures to tell a story, but that may not be the most precise way to put it. I used to tell editors that they should imagine they've locked me in one room and the writer in another and given us both the same assignment. Then when we hand in our work, you marry the two and trust that the marriage works out. It seems to me that you'll get better art out of an artist that way than by asking him to channel some writer's sensibility.
Q: With this in mind, do you think technology is making our societies shift back from an alphabetic thinking to a more ideographic communication?
A: Not necessarily. At least I hope not. Linear thinking is too important to the maintenance of a civil society. It's the only way people can communicate precise thoughts. The problem with linear thinking is that it often becomes an iron mask. Drawing is a way of thinking too. It's an irrational way of thinking and there are always dangers in that. Cultures that make a fetish of irrational thinking usually pay for it in the long run. But on the other hand, irrational thinking is the source of insights and breakthroughs.
Q: Besides Hawthorne, what other storytellers, writers or artists, have had an impact in the way you see the world?
A: The plays of Albert Camus: Caligula and The Just Assassins. Greek tragedies like Prometheus Bound. The writing style of H.L. Mencken. But before I came to read widely or see art (except for comic strips), I was influenced by my uncle Wayne, who was a postman in rural Arkansas.
Wayne was a fantastic storyteller. He drove around every day to all the local farms, delivering the mail and chatting with farmers and housewives. So whenever he'd come to our house for a visit, he'd have wonderful stories to tell.
They weren't dramatic stories, just accounts of ordinary, everyday events. Yet there was always something compelling about them. They weren't necessarily funny – I don't remember Wayne ever telling jokes – but there was usually something comic about them. His pacing and the way he combined words always made his stories more interesting and more amusing than they should have been. I absorbed all those techniques when I was a kid, and since I was always drawing things, the same sensibility just naturally came out in the pictures I drew.
Q: Just as images tell a story, there is a story behind every work. How has your creative process changed over the years?
A: It hasn't really. I'm essentially doing the same thing that I've been doing since I was five. I just have better opportunities now than I did in Kindergarten.
Q: Has any particular project forced you to modify radically the way you work?
A: No, not in the way you've put it. But since I never studied art, my natural curiosity about how to make pictures has led me to try out different approaches. And various assignments have given me a chance to try those things out.
Q: Can you share an example with us?
A: Some years ago, the Frankfurter Allgemeine Magazin gave me a series of dream assignments. Every month or so, they'd pick a theme and give me a cover and eight pages inside to do whatever I wanted to do on that subject. Then they'd supply an article (in German) to go with the art. One of those assignments was about high schools of New York City.
I began by sketching teenagers who hung around Greenwich Village after class. Then I used the sketches to do a series of conceptual paintings. One of them had two kids exchanging drugs in front of a great tortured wall, with a hungry black dog walking towards them. It wasn't much more than a scene drawn from life, except for what I did with the surface of the wall.
I wanted to cover the wall with graffiti. But I didn't want to just imitate graffiti; I wanted to get its spirit. I finally found a way by remembering that when I was a little kid I once got into trouble by drawing with crayons on a corner of my parents' living room. That's what New York City graffiti reminded me of. So in my painting, I covered the wall with crude crayon drawings of grotesque faces.
That painting became my favorite of the series, but what I liked most about it were the crayon drawings themselves. For months afterwards, I began to work crayon drawings into other assignments, first for the same magazine, then for others. Then some art directors began to ask for them. By then I had bought a big box of pastels – which gave the drawings a more sensual feel than what I had been getting with crayons – and the whole approach began to take on a life of its own.
To other people, it may have looked as if I had somehow adopted a new style. But for me, it was more like a phase; like a teenaged rebellion against the self-confidence that comes from being a professional. It kept me from settling into an artistic rut. Every once in a while I have to get back in touch with being five years old. It lets me feel as if I'm starting all over again and the challenge of always starting over keeps me interested in what I'm doing.