When I was little, my favorite story was Oscar Wilde's fable of The Happy Prince. My grandmother used to read it to me so often that I was finally able to read it to her. So I was pleased last April when Cristina Taverna of the Nuages Gallery in Milan asked me to do a dozen paintings for the story for her Classics Illustrated book series. The only catch was that the art had to be ready for exhibition in London on June 6. That meant the work had to be done in a month. The edition was published in May in both English and Italian.
For those who don't know the story, it's about a town where poverty and unhappiness are common, but where the local big shots have erected a gilded statue of a Happy Prince to overlook the town.
From his perch, the statue sees the suffering below and, unable to tolerate his own splendor in the face of so much unhappiness, prevails upon a lovesick swallow to pluck out the ruby from his sword and later, the sapphires from his eyes to give to the poor.
At first, the swallow protests that he's late in joining the other birds on their winter migration to Egypt. But the statue persists and the swallow finally agrees to do his biding.
With his jeweled eyes gone the statue is blind. So the swallow stays with him to act as his eyes throughout the autumn.
Now it's the swallow who surveys the town's poverty and reports what he sees to the Happy Prince. And so, with no more jewels left, the statue commands the bird to strip him of his gold leaf and distribute it to the poor as well.
Winter comes, and with the statue blind, the bird stays with him as a companion. But with an unusually hard frost, the swallow dies and the statue's leaden heart breaks.
The town fathers tear down the statue and melt it down. But in the furnace, the dead bird doesn't burn and the statue's heart doesn't melt.
Then one day God sends an angel to the city to bring Him the most precious things he can find. The angel returns with the dead bird and the broken heart.
Here are the pictures, with captions from the text.
HIGH above the city, on a tall column, stood the statue of the Happy Prince. He was gilded all over with thin leaves of fine gold, for eyes he had two bright sapphires, and a large red ruby glowed on his sword-hilt.
Then the swallow saw the statue on the tall column. ‘I will put up there,’ he cried; ‘it is a fine position with plenty of fresh air.’ So he alighted just between the feet of the Happy Prince.‘ I have a golden bedroom,’ he said softly to himself as he looked round, and he prepared to go to sleep.
The eyes of the Happy Prince were filled with tears, and tears were running down his golden cheeks.
So the Swallow picked out the great ruby from the Prince’s sword, and flew away with it in his beak over the roofs of the town. He passed by the cathedral tower, where the white marble angels were sculptured. He passed by the palace and heard the sound of dancing…At last he came to the poor house and looked in.
‘I am waited for in Egypt,’ answered the Swallow. ‘To-morrow my friends will fly up to the Second Cataract. The river-horse couches there among the bulrushes, and on a great granite throne sits the God Memnon.
‘Alas! I have no ruby now,’ said the Prince; ‘my eyes are all that I have left. They are made of rare sapphires, which were brought out of India a thousand years ago. Pluck out one of them and take it to him.'
So the Swallow plucked out the Prince’s eye, and flew away to the student’s garret.
So he plucked out the Prince’s other eye, and darted down with it. He swooped past the match-girl, and slipped the jewel into the palm of her hand.
Then the snow came, and after the snow came the frost…‘It is not to Egypt that I am going,’ said the Swallow. ‘I am going to the House of Death.'
Early the next morning the Mayor was walking in the square below in company with the Town Councillors. As they passed the column he looked up at the statue: ‘Dear me! how shabby the Happy Prince looks!’ he said…‘The ruby has fallen out of his sword, his eyes are gone, and he is golden no longer,’ said the Mayor; ‘in fact, he is little better than a beggar!’
‘What a strange thing!’ said the overseer of the workmen at the foundry. ‘This broken lead heart will not melt in the furnace. We must throw it away.’
‘Bring me the two most precious things in the city,’ said God to one of His Angels; and the Angel brought Him the leaden heart and the dead bird. ‘You have rightly chosen,’ said God, ‘for in my garden of Paradise this little bird shall sing for evermore, and in my city of gold the Happy Prince shall praise me.’
"In Switzerland it is a tradition that we celebrate the new year with fire," my friend Roland wrote me from Zurich. One such tradition, he said, is the Swiss “table bomb." Light a fuse and boom, out come "noses, hats, colored balls and many other toys for children."
Who knew there was such a thing as a Swiss piñata?
"My very, very rough idea," Roland explained, "I thought to have a tablebomb with a face of a Santa Claus on it, and out of the bomb, instead of toys, some Santa Clauses are flying in an artistic way."
To be honest, I had never heard of a table bomb, Swiss or otherwise. In the US, I don't think we have any Christmas traditions built around explosions in the home – and if we did, I'm sure that Homeland Security would have shut them down by now. But for Roland Scotoni, one of the world's most imaginative art directors, it was a concept that led him to think of me.
I'm not sure why. It’s not as if I’m known around the world for painting Santas. Or explosions, for that matter. But Roland is a fantastic art director and a great friend so I said sure, I'd do it and began drawing.
First things first: the artistic flying Santas.
I started with these guys because at first I thought they'd give me trouble. They didn't, they came easily. Santas just came pouring out, flyng in all directions, several sheets of typing paper full of them.That was enough to convince me that the picture would work, so I started painting.
Of course, this wasn't the kind of image I'd normally have thought to do on my own, but once done, I loved it. Still, I probably wouldn't have posted it here except for something unexpected that happened last Christmas day.
On Christmas morning last year, I woke up and retrieved the day's emails. The first one I opened was Steve Heller's daily design blog for Print Magazine. Steve sends these things out every day. Some days it's about new work that he's seen and liked. Other times it's archival stuff that he's dug up from around the world.
This day, he was sending out a long lost painting I once did of Santa Claus. It was titled "Who Put the X in Xmas," and it had no text except for a short sentence saying it was a Christmas greeting from him and me.
With no other context, this made it sound as if the picture was some new work I had just painted for Steve's blog when in fact, it was something I did nearly 40 years ago. Since Steve didn't supply the backstory, I thought I’d wait until this year and do it here.
Back in our counterculture days, Steve and I both did work for a weekly tabloid called the East Village Other. EVO was the New York Times of hippie newspapers, although with potheads, knuckleheads and 16 year old runaways hanging around the joint, its offices more closely resembled a pool hall than a news room.
Among the characters for whom EVO seemed to be a home-away-from-home was an elderly radical named Vincent Titus.
That's Titus, on the right in the photograph below. The others are the self-styled "Dylanologist," A. J. Weberman (on the left) and the cartoonist Yossarian. If I remember correctly, they had just absconded with Bob Dylan's garbage and were hauling it off to comb through it to see what they could find. So much for the Revolution.
Around the EVO offices Titus never really had any legitimate function. So with lots of time on his hands he used to regale anyone who would listen with wild and wooly tales about his alleged exploits during the Spanish Civil War.
Having taken arms against the evil Franco made Titus a sort of mascot among the armchair revolutionaries of EVO. But for my part, he reminded me of the Ancient Mariner – looked like him too. More than once I thought I should paint him with an albatross hanging around his neck.
Instead, one year I decided to paint him as Santa Claus.
My idea was to paint Titus in a mug shot, with his straggly white beard and cockeyed stare, as if he had just been arrested for breaking and entering. I thought it was an amusing concept, and for the handful of people it was intended for that Christmas, it seemed to be.
But for normal folks, Titus was hardly the sort of Santa you'd like to see emerging from your hearth on a dark night, or rapping at your door going ho-ho-ho. My painting of him is definitely at the other end of the Santa Claus spectrum from the flying Santas I was painting for Roland.
I can only guess where Steve found this primieval artifact of my youth. I lost track of the original a long time ago and in those days I didn't keep transparencies. In any event, I had almost forgotten about the thing until I opened my in-box last Christmas. Then it was like getting an e-visit from the Spirit of Christmas Past.
Anyway, on the premise that one good Santa deserves another – or in this case, that a bad Santa deserves a good one – I decided this year that I'd tie up the loose ends of last year by posting this account.
So on behalf of Steve Heller – and Vincent Titus, wherever he may be – and of Roland Scotoni in far-off Zurich and of course, myself, may a thousand flying Santas fly down all your chimneys next week and for God's sake let's hope that the new year will be a better one than the last.
Last Saturday in Japan, the Niigata Prefectural Museum of Modern Art opened an exhibition of art from the 20 volume design publication Creation, launched in 1989 by the famous Japanese designer Yusaku Kamekura (1915–1997). "I'm Coming Apart," my painting from 1990, is being featured in the exhibition.
So is a letter with a drawing of a bull on it that I sent Mr. Kamekura when he invited me to be one of the 20 artists featured in the cover stories. But more about the bull drawing in a moment.
Creation was published quarterly over a period of five years by the Recruit Publishing Company of Tokyo. It was the last major work of Yusaku Kamekura who had long been a driving force on the front line of Japanese graphic design. The occasion is the 100th anniversary of his birth.
According to the Museum: "In this exhibition, we aim to introduce the charm of the artists featured in Creation alongside their supplemental materials, such as their manuscripts and rough sketches. Through these items, we are offered the opportunity to peer into Kamekura’s perspective on design and examine the devotion with which he produced Creation."
Yusaku Kamekura was born in Tsubame City in Niigata Prefecture and in a lifetime of inspired work, he helped establish Japan's international reputation for modern graphic design. You can find a lot of his own work on the Internet and read about him at the Art Directors Club Hall of Fame website.
In editing Creation, Kamekura envisioned an arts magazine with no advertising that would be limited to just 20 issues. It was to be his final statement about the art world of his lifetime and he made all the editorial decisions. He chose the artists. He oversaw the text. He designed the layout. According to Randall Ross of modernism101.com "while CREATION was around, it was a true heavyweight in its presentation of both vintage and contemporary graphic design."
"I'm Coming Apart," from Creation #6, was first published in Longevity Magazine, then republished as a poster for the Art Directors Club of Cincinnati. The poster won the Hamilton King Award at the Society of Illustrators that year and is in the permanent collection of the Museum of Modern Art, Toyama Japan.
Since then, it's been re-published a number of times in other countries for other purposes. For example, this book jacket from Italy's Giunti Blu.
It was also published as an album cover for Champs Du Possible by the popular French singer Bernard Lavilliers.
And as part of the publicity campaign for the album, the painting was made into large banners and stand-up displays for the record stores and was widely reproduced throughout France on subway, bus and kiosk posters.
I've always found it ironic that this picture, which is one of the least commercial things I've ever done, should end up being so widely published. When I painted it for Longevity, the magazine was in between art directors and I don't remember anyone even asking for a sketch. The painting itself just came, and came so quickly and so directly that I hardly remember doing it.
That contrasts with the letter I sent Mr. Kamekura, and which is also being featured in the current exhibition. It's not much really, just a quick thank you note I sent him that year. But I had a lot to thank him for.
When my issue of Creation was published, Mr. Kamekura arranged for an exhibition of my work in Tokyo and invited me and my friend Jennifer Phillips to spend two weeks there. It was our first visit to Japan, and with his many connections, Mr. Kamekura arranged things for us that, as outsiders to the country, we could never have arranged for ourselves. In addition to being a fantastic designer, he was a very kind, thoughtful and generous man.
The drawing of the bull however, developed a history of its own that I think Mr. Kamekura would have appreciated.
Buills had begun to turn up in my drawings and paintings around the same time as my exhibition in Tokyo.
It started because I had spent some time hanging out with rodeo clowns in the Southwest and wrote an article about the experience for Texas Monthly. I did 12 paintings for the feature, all based on sketches I had done at various rodeos and in off-hours hanging around the bull chutes.
So between the dozen finished paintings for the series and all the preliminary sketches, I found that I could draw bulls in my sleep and very nearly did.
So anyway, that year the Society of Illustrators asked me to design a poster for their annual call for entries. With my rodeo experience still fresh in my head, I had bulls on the brain, and since the Society's Gold Medals have a bull on them – an homage to the bulls of Lascaux – I decided to do a painting of a bull for the poster.
I asked Jennifer, who’s a brilliant designer, to do the typography for it. She suggested that since the Society's gold medals are round, we should do a round poster.
This semed like a great idea to us, but it met with some considerable opposition from the poster committee at the Society. They told us that posters are square, they're not supposed to be round. But to us, that seemed like an even better reason to do one, so we did.
Twelve organizations have sent the following letter to the Copyright Office. It points out that the government's proposed changes to US copyright law would degrade each artist's exclusive right to a non-exclusive right and would therefore violate the Copyright Clause of the Constitution. I'm personally grateful to each of these groups for their continued support. The illustration community is fortunate to have their dedication to the protection of their members' rights. I'd also like to thank each of the 2,600 artists who wrote the Copyright Office in July. The response was unprecedented, your letters were excellent and several of them have been quoted in this letter. Thanks to all of you.
September 22, 2015
Register of Copyrights
U.S. Copyright Office
101Independence Ave. S.E.
Washington, DC 20559-6000
RE: Notice of Inquiry, US Copyright Office, Library of Congress
Copyright Protection for Certain Visual Works (80fr23054)
Reply Comment of the American Society of Illustrators Partnership
The responses to the Visual Arts Notice of Inquiry demonstrate that artists overwhelmingly oppose orphan works legislation. Although the Copyright Office invited us to express our opinions about current copyright law (and most did), nearly all respondents also expressed their concerns over the potential return of an orphan works bill that would reverse the principle of copyright law and degrade the exclusive right of authorship to a non-exclusive right. Of course, it should not be surprising that so many have chosen to comment on this subject. Nearly two months before the deadline for submissions, the Copyright Office had already sent draft legislation to Congress proposing a new copyright law based on the 2008 Shawn Bentley Orphan Works Act.
The Artists Rights Society spoke for nearly all of us when it wrote that the proposed legislation would “would destroy the legitimate market for the artist’s work, and nullify the protections afforded by the Copyright Act.” (1) And we agree with our colleagues at the Illustrators Partnership that because an author’s exclusive right to his or her work is guaranteed by Article 1, Section 8 of the Constitution, it cannot be nullified except by a Constitutional amendment. (2) In these reply comments we hope to comment further on that point.
First, let’s note that the initial response to this Notice of Inquiry is between three to ten times greater than the total response to the 2005 Study on which orphan works legislation was based. In its House testimony of March 13, 2008, the Copyright Office stated that it had received “more than 850 written comments” to its 2005 Orphan Works Study. (3) The Copyright Office called this an “overwhelming response,” and said it justified the legislation it proposed to Congress. (4) Yet the current Visual Arts Inquiry has already drawn more than 2,500 letters – a number that does not yet include reply comments – and the vast majority are firmly opposed to the legislation.
Moreover, let’s recall that of the 850 letters received 10 years ago, the Copyright Office had to discount more than 600 of them because they did not reflect an “orphan works situation.” (5) That means that orphan works legislation has never been predicated on more than 215 total comments. (6) Comparing that number to the current outpouring – a ratio of more than 10:1 – we have to conclude, in the words of David Rhodes, President of the School of Visual Arts, that “[t]he Copyright Office’s own paucity of data should lead one to conclude that ‘Orphan Works’ are not a problem.” (7)
Moreover, since 2008, libraries and archives have gone on record to state that recent court decisions have “diminished the need for orphan works legislation.” (8) Therefore the orphan works campaign now boils down to the desire by some commercial entities and the legal scholars associated with them to abridge the exclusive right of authorship “secured” by Article 1, Section 8 of the Constitution.
Visual artists may not be legal scholars, but neither were 20 of the 55 delegates to the 1787 Constitutional Convention. (9) Many of the framers were businessmen and merchants, which may explain why the Constitution contains a provision guaranteeing copyright as a private property right. For similar reasons, it should not be surprising then that so many visual artists, the smallest of small business owners, should express their concern that orphan works legislation would undermine that Constitutional provision. Here are just five examples from the current responses:
Association of Medical Illustrators: “The threat to copyright is that it is losing its legitimacy which is based on protecting…the exclusive rights promised by the founders in Article 1, Section 8 of the Constitution...” (10)
Medical Illustrator William Westwood: “Now proposals are being made to further undermine the concept of ‘exclusive’ copyright ownership by creators through notions that ‘potential users’ have ‘rights’ to make use of copyrighted images on par with those of actual creators and copyright.” (11)
New Yorker Cartoonist Pat Byrnes: “The Orphan Works Legislation Discussion Draft contemplated in the Report by the Copyright Office violates every fundamental of international rights treaties and tenets of our own Constitution…Making something published yesterday eligible for orphan status is a veritable abolishment of Copyright altogether.” (12)
Artist Taina Litwak: “The Mass Digitization proposal makes a mockery of the Constitution, the free market, and rights of ownership. PLEASE know that MANY creative people ARE paying attention and are DEEPLY DISTURBED.” (Emphasis in the original.) (13)
Medical Illustrator Teri McDermott: “The Copyright Act was the first article passed in the US Constitution. It was that important.” (14)
Article 1, Section 8
The Constitution’s Copyright Clause states that Congress shall have the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (15)
But giving Congress the power to “secure” those rights does not give it the power to abolish them via statute law. To the contrary, it accepts the existence of an author’s exclusive rights as a given.
In fact, the comments submitted by Rutgers University Libraries go further:
“Art and culture is compromised when creators are unable to benefit from their own works because economic gains accrue instead to third parties directly through infringement and indirectly through other forms of third-party monetization…This is not fair, and it is not what copyright, which is recognized as a human right under Article 27 of the United Nations Universal Declaration of Human Rights, was intended to achieve.” (Emphasis added.) (16)
The Universal Declaration of Human Rights, Article 27.2: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (17)
Reversing Copyright Law
Since 2008, the Illustrators Partnership has repeatedly argued that the Orphan Works Act would nullify an author’s exclusive rights because it would invert the default premise of copyright law:
“[I]ts logic reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it’s your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder.” (Italics in the original.) (18)
A year later, Marybeth Peters, then Register of the Copyright Office made a similar point about the Google Book Search Settlement when she stated the Office’s opposition to it in Congressional testimony:
“The [Google] settlement…could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets…In summary, the out-of-print default rules would allow Google to operate under reverse principles of copyright law.” (Italics added.) (19)
In 2011 the Google settlement was thrown out of court on various grounds, including copyright infringement, antitrust and international law concerns, privacy issues and others. Judge Denny Chin ruled that neither party had the right to enter into an agreement that carved up the exclusive rights of the world’s authors.
“A copyright owner’s right to exclude others from using his property is fundamental and beyond dispute,” [he wrote]. “[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.” (Emphasis added.) (20)
Substitute the words “good faith infringer” for “Google” in that ruling and you’ll see how the proposed orphan works legislation “is incongruous with the purpose of the copyright laws.”
The Orphan Works Act of 2008 and the Google Book Settlement were alike in that both would have created an opt-out business model that legalized widespread commercial infringement and required authors to take specific steps to “reclaim” their private property after it had already been appropriated by others.
Yet of the two, the Orphan Works Act presents the more egregious business model. The victims of Google’s book infringements would at least know the identity of their infringer: Google. By contrast, infringements under the Orphan Works Act could occur anytime, anywhere and be committed by anyone.
“Instead of giving preference to the legal rights of the creators of works, the [Orphan Works Act] is openly biased in favor of infringers—people who willfully break the law.” (21)
But of course if Congress were to pass legislation allowing infringers “to operate under reverse principles of copyright law,” then what is currently illegal would become legal.
Making the Illegal Legal
At the 2014 Copyright Office Roundtables, Professor Ariel Katz of the Law Faculty of the University of Toronto proposed a hypothetical “business model.” In it, he said “a few authors” might get together to “create a licensing scheme,” and in addition to licensing their own work, license the work “of anyone else, even if they have never authorized us to act on their behalf.” Being good guys, he said, they would of course charge fees for licensing other peoples’ work and would even pay the “unknown” authors if they should ever turn up. But then rounding to his point, he added: “I don’t think that is legal. Right?” (22)
The Copyright Office response was immediate: “I think it would have to be legislation, probably, that would make the difference that would legalize it but others might have a different opinion.” (23)
The view that Congress can legalize illegal infringement is once again at the heart of the draft legislation the Copyright Office has proposed to Congress. In its 2015 Report on Orphan Works and Mass Digitization, the Office cites two authorities to justify their recommendations. (24)
In rejecting the Google Book Settlement, Judge Chin wrote that “foreign countries, authors, and publishers have asserted that the [settlement] would violate international law. For this reason as well, the matter is better left for Congress.” (25)
And: “the Supreme Court has held that ‘it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” (26)
We agree with both comments. Yet we find no reason to interpret either as a call for Congress to reverse the principles of copyright law. It is simply Civics 101 to state that the separation of powers requires that laws be written, or rewritten, by the legislative branch and not by the courts.
Congress may indeed have the power to legalize illegal acts – but not to nullify a Constitutional right via statute law. If, as Judge Chin wrote “[a] copyright owner’s right to exclude others from using his property is fundamental and beyond dispute,” then legalizing the widespread commercial infringement of every citizen’s exclusive right to control the work he or she creates would involve the nullification of a “fundamental” Constitutional right. And to do that legally, Congress and/or the state legislatures must act in concert to pass a Constitutional amendment. It cannot be a business-as-usual law.
Breaching the Sanctity of Contracts
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 orphan works legislation would do – would make all contracts regarding the disposition of that property essentially meaningless. People who make their livings licensing their work instinctively understand this:
Pat Byrnes: “My objections to the proposed Orphan Works Act of 20__ include… the preemption of artists’ rights to exercise exclusive control over their works and the impediments that [it] creates for them to enter into exclusive contracts…” (27)
Medical Illustrator Cynthia Turner: “My work in these markets is always conducted under non-disclosure agreements and under an exclusive license. The nature of the use, the market, the media and collateral use, the worldwide geographic territories, and the length of duration are all carefully enumerated and defined in my client licenses.” (28)
Brad Holland/The Illustrators Partnership: “Orphan works infringements would nullify millions of private business contracts between authors and the clients they’ve licensed work to. This would not only cause economic harm to the authors, but to their clients as well.” (29)
Sanctity of Contract is “a general idea that once parties duly enter into a contract, they must honor their obligations under that contract.” (30) But what if both parties to a contract DO honor their contractual obligations, yet find the terms of the agreement impaired by third parties? If the third parties are individuals or business entities, it’s called tortious interference, and under the law there’s a remedy for that. (31) But what if the interfering party is the US government?
Aviation Artist Keith Ferris: ”There are many contractual arrangements in place across the art industry in danger of being negated by government action. Entire business models are in jeopardy.” (32)
Brad Holland/The Illustrators Partnership: “[I]n effect, the government would appear to be proposing a grant of blanket amnesty in advance to any infringer who interferes with the contractual or business relationships of millions of authors, small business owners and private parties, so long as the infringer believes he or she is acting in “good faith.” Legislative immunity may 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?” (33)
In explaining exclusive rights to young artists, we often refer to an author’s copyright as a pie. The artist can sell the whole pie to a client for a substantial fee, or license slices to different clients and price the fees accordingly.
Keith Ferris: “Since copyrights are infinitely divisible, one’s inventory of copyrights is as good as a bank account and amounts to very valuable personal property. The advent of the internet with its rapid communication ability has actually greatly increased the value of our personal inventory of copyrights. Any effort to allow third parties to exploit these rights other than through exercise of the artist’s exclusive right to do so would be theft of his/her personal property, resulting in the stealing of money belonging to the artist. It is important for the successful business of art that we voluntarily control all uses of our art.” (34)
It’s important that rightsholders control these uses because without the ability to withhold rights not paid for – in other words, without an exclusive right to sell or license the property – there can be no rational pricing structure. And under an orphan works regime, that is exactly what the government would be creating. Entering into contracts of any kind would then become a crapshoot because no artist could ever again guarantee any client that rights licensed to that client haven’t been (or won’t be) infringed by someone, sometime, somewhere in the world.
Creating Uncertainty Through Legislation
The Copyright Office’s 2015 Report is full of citations from legal scholars about the need for certainty among users. Yet it is the current copyright system that provides certainty in the markets. 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; therefore both parties are in a position to monitor mutual compliance.
By contrast, a reckless orphan works law would inflict massive and perpetual chaos in those markets. For the sake of guaranteeing certainty to infringers in the secondary rights market, the law would make it impossible for either creators or their clients in the primary markets to know who, where or on what terms any particular work is, has been or will be used.
Brad Holland/The Illustrators Partnership: “How many private parties will end up suing each other for breach of contract in hopes of making the other party pay for their loss simply because the government itself had passed a private property law breaching their contracts?” (35)
The most likely scenario would be for clients to sue artists alleging lack of due diligence in monitoring their rights. They might sue artists for failing to register work, even work produced under the 1976 Copyright Act (which did not require registration). Or they might sue us for failing to monitor the world’s publications, websites and orphaned work registries (an impossible task) for evidence that the works they’ve licensed have not been infringed.
In the real world it will hardly matter that such lawsuits would be the result of government’s placing an impossible burden of diligence on artists as a condition of preserving their Constitutional right of authorship. Such litigation would not need to be fair: the law will have made it legal. And anyone who thinks this won’t happen isn’t living in the world the rest of us have to live and work in.
To sum up the orphan works case for certainty: The Copyright Office seeks to provide certainty for the sub-class of “good faith” infringers in the secondary rights market by abolishing certainty for all creators and their clients in the primary rights market. If this is to be the new definition of how to “promote Science and useful arts,” then we reiterate that it would be a fundamental change to Constitutional law and must be done by Constitutional amendment.
The responses to the Notice of Inquiry include more than two thousand statements from artists concerned that the proposed legislation would damage or even end their careers. To quote from just five:
Telaina M. Muir: ”[R]equired registration would take up valuable time and money and make it virtually impossible for small based artists like myself to earn an income and protect my images.” (36)
Sara Jarret: “Currently, I only register works that I feel have a higher likelihood of being infringed, simply because I can not afford to register all of my works.” (37)
Scott Staton: “The time, expense and paperwork alone would be a full time job and would effectively end my creative working career.” (38)
Taina Litwak: “The process of limiting liability that you propose…means the END of the commercial illustration business made up of small independent authors.” (39)
The Artists Rights Society: “There is No Business Imperative for New Legislation: If Adopted, It Would Destroy the Market for the Work of Visual Artists.” (40)
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...” (41)
But what benefits would those be to “outweigh” the damage to the lives, careers and reputations of rightsholders? And for whom would the “benefits” be benefits?
By acknowledging artists’ “concerns,” the Copyright Office has implicitly conceded that it is not rightsholders who should expect to benefit from the legislation they’ve proposed. So who then? The answer can be found in the executive summary of the Copyright Office’s original (2006) Report on Orphan Works:
“[I]f our recommendation [for legislation] resolves users’ concerns in a satisfactory way [they wrote], it will likely be a comprehensive solution to the orphan works situation.” (Italics added.) (42)
If it is the considered opinion of the Copyright Office that the fundamental premise of copyright law should be reversed; that the exclusive right of authorship should be degraded to a non-exclusive right; and that new rights should be created for users at the expense of authors, then that would be a fundamental change to the Constitution itself, and Article 5 of the Constitution “establishes the means for amending that document.”
“The process…is deliberately difficult…The advantages lie in the fact that the Constitution’s provisions are not subject to change according to the whims of a particular moment.” (43)
We’re well aware that currently there are some who believe that the purpose of copyright law should be to grant members of the public easy access to each other’s intellectual property. But that is not what the Constitution says: rather the opposite. The Copyright Clause never mentions users’ rights, and it does not provide a framework for creating such rights via routine legislation. There is a world of difference between giving Congress the power to set the terms of an author’s exclusive right and abolishing that right altogether.
If, as Judge Chin has stated, an author’s Constitutional right “to exclude others from using his property is fundamental and beyond dispute,” then we submit that those who do wish to dispute it and who wish to fundamentally change the Constitution must do so legally, in the manner prescribed by the Constitution,* because currently the language of Article 1, Section 8 stands in their way.
Co-Chair, American Society of Illustrators Partnership
Co-Chair, American Society of Illustrators Partnership
Frank M. Costantino, ASAI, FSAI, JARA
Representative for American Society of Architectural Illustrators (ASAI)
Representative for San Francisco Society of Illustrators (SFSI)
Dolores R. Santoliquido
Representative for Guild of Natural Science Illustrators (GNSI)
Joe Azar, Esq.
Representative for Illustrators Club of Washington DC, MD, VA (IC)
Representative for Association of Medical Illustrators (AMI)
Representative for Pittsburgh Society of Illustrators (PSI)
Representative for Society of Illustrators San Diego (SISD)
Representative for the National Cartoonists Society (NCS)
Representative for the Association of American Editorial Cartoonists (AAEC)
Representative for the American Society of Aviation Artists (ASAA)
Society of Illustrators Los Angeles (SILA)
Unaffiliated Illustrators at Large
1. Comments of the Artists Rights Society (ARS), p. 10, Response to Notice of Inquiry, Library of Congress U.S. Copyright Office [Docket No. 2015-01]
2. Comments of Brad Holland/The Illustrators Partnership of America, Response to Notice of Inquiry, July 17, 2015, p.1.
3. Register’s testimony on the “Orphan Works Problem and Proposed Legislation” before the Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives March 13, 2008 http://www.copyright.gov/video/testimony-3-13-08.html
4. Report on Orphan Works, A Report of the Register of Copyrights, January 2006, United States Copyright Office. http://www.copyright.gov/orphan/orphan-report.pdf
6. The exact numbers were 721 initial comments and 146 reply comments, a total of 867. But on page 21 of the Report on Orphan Works, the Copyright Office acknowledged that only “about 24% of all comments” “provided enough information about a specific situation for us to conclude that it presented an orphan works situation.” Twenty four percent of 867 letters equals 215. The other comments were considered either vague or “not in fact an orphan works situation.” Report on Orphan Works, A Report of the Register of Copyrights, January 2006, United States Copyright Office, pp.17-21. http://www.copyright.gov/orphan/orphan-report.pdf
7. David Rhodes, President, School of Visual Arts, U.S. Small Business Administration Roundtable on Orphan Works Legislation, August 8, 2008.
8. Comments of Jonathan Band, Library Copyright Alliance; and David Hansen, Digital Library Copyright Project, University of California, Berkley School of Law & Law Library, University of North Carolina School of Law; Transcript of the Orphan Works and Mass Digitization Roundtables; Session 1: “The Need for Legislation in Light of Recent Legal and Technological Developments”; March 10, 2014; quoted in Comments submitted by Brad Holland/The Illustrators Partnership of America, July 17, 2015, Footnotes pp. 6-7. http://www.copyright.gov/orphan/transcript/0310LOC.pdf
16. Comments of Rutgers University Libraries in Response to Notice of Inquiry Concerning Certain Visual Works; Submitted July 23, 2015 p.1.
17. The Universal Declaration of Human Rights http://www.claiminghumanrights.org/udhr_article_27.html#at29
18. From “Orphan Works: A Hobson’s Choice for Artists,” by Brad Holland, August 8 2008; Small Business Administration Roundtable: “How Will the Orphan Works Bills Economically Impact Small Entities?” http://ipaorphanworks.blogspot.co.uk/2008/09/orphan-works-legislation-by.html
19. Statement of Marybeth Peters, The Register of Copyrights before the Committee on the Judiciary United States House of Representatives, 111th Congress, 1st Session September 10, 2009. http://www.copyright.gov/docs/regstat091009.html
21. Comments of Pat Byrnes, July 21, 2015, Response to Notice of Inquiry, p.11.
22. Comments by Ariel Katz, Faculty of Law, University of Toronto; Transcript of the Orphan Works and Mass Digitization Roundtables; Session 9: “The Structure and Mechanics of a Possible Extended Collective Licensing System in the United States,” March 11, 2014, pp. 220-221. http://copyright.gov/orphan/transcript/0311LOC.pdf
23. Comment by Karyn Temple Claggett, US Copyright Office; Transcript of the Orphan Works and Mass Digitization Roundtables; Session 9: “The Structure and Mechanics of a Possible Extended Collective Licensing System in the United States,” March 11, 2014, p. 221. http://copyright.gov/orphan/transcript/0311LOC.pdf
24. 2015 Report on Orphan Works and Mass Digitization, Report of the Register of Copyrights, June 2015, p. 44, Footnote 199.
25. Read all about IT ~ IP Developments From The Digital World, “Summary of the Google Books Settlement Ruling, in Judge Chin’s words,” Posted by Gareth Dickson March 27, 2011; http://blawg.intellectual-property.it/2011/03/copyright/summary-of-the-google-book-settlement-ruling-in-judge-chins-words/
26. 2015 Report on Orphan Works and Mass Digitization. p. 44, Footnote 199.
27. Comments of Pat Byrnes, July 21, 2015, Response to Notice of Inquiry, pp. 1-2.
28. Comments of Cynthia Turner, Response to Notice of Inquiry, p.3.
29. Comments of Brad Holland/The Illustrators Partnership of America, Response to Notice of Inquiry, July 17, 2015, p.2.
31. “Tortious interference is a common law tort allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff’s contractual or business relationships.” https://www.law.cornell.edu/wex/tortious_interference
32. Comments of Keith Ferris, Response to Notice of Inquiry, p.3.
33. Comments of Brad Holland/The Illustrators Partnership of America, Response to Notice of Inquiry, July 17, 2015, pp. 2-3.
34. Comments of Keith Ferris, Response to Notice of Inquiry, p.2.
35. Comments of Brad Holland/ The Illustrators Partnership of America, Response to Notice of Inquiry, July 17, 2015, p.2.
36. Comments of Telaina M. Muir, Response to Notice of Inquiry, July 21, 2015, p.2.
37. Comments of Sara Jarret, Response to Notice of Inquiry, July 19, 2015.
38. Comments of Scott Staton: Response to Notice of Inquiry, July 23, 2015, p.1.
39. Comments of Taina Litwak: Response to Notice of Inquiry, July 22, 2015, p.1.
40. Comments of Artists Rights Society (ARS), Response to Notice of Inquiry, p.10
41. 2015 Report on Orphan Works and Mass Digitization, pp. 50-51.
42. Report on Orphan Works, A Report of the Register of Copyrights, January 2006, p.14. http://www.copyright.gov/orphan/orphan-report-full.pdf
43. http://legal-dictionary.thefreedictionary.com/Brief+History+of+Constitutional+Amendments "As spelled out in Article V, the Constitution can be amended in one of two ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures (ratification by thirty-eight states would be required to ratify an amendment today). This first method of amendment is the only one used to date. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention’s proposed amendments are later ratified by three-fourths of the state legislatures.” http://law2.umkc.edu/faculty/projects/ftrials/conlaw/articleV.htm