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Creative Leisure News
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The industry as seen by top designers.

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More Details of the Orphan Works Legislation

And the harm it could do to the industry.

by Brenda Pinnick, Brenda Pinnick Designs, Inc. (May 19, 2008)

(Note: Brenda Pinnick creates and licenses art, design, and product concepts for scrapbooking and paper crafting products. Her products are sold on QVC and in retail stores. She has worked in-house for such notables as Hallmark Cards and for Plaid Enterprises and has been licensing art for 3+ years. Brenda serves on the CHA Designer Council and is on the Professional Advisory Committee for the Art Institute of Atlanta.)

Dear Friends and Members of the Creative Community,

I urge you to examine how this legislation will, if passed, affect the crafting/creative industry.

The nature of the products we make, that is, products which begin with the artist, move onto manufacturers, retailers, and finally into the hands of crafters is a bit different than some other industries such as gift or home goods. Presumably, the end user, the crafter, will use the products either in whole or part, to create a "derivative work". It is common for scrapbooking and card crafting enthusiasts (for example) to then "publish" their creations on forums, blogs, online galleries, and more. In many, if not most instances, the crafters will add a copyright notice,

claiming authorship as "designer." This is done in ignorance of the current copyright laws, which state, under current law, the right to create a derivative work is one of an artist's exclusive rights.

Section103 (a) says a user can't copyright a derivative image that he's infringed. Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Under the proposed new bills (Orphan Acts of 2008 (S. 2913), and Orphan Works Act of 2008 (H.R. 5889) since the entirety of an infringed work can be included in a derivative use, then the copyright of the derivative will amount to a copyright of the original. This would be a de facto capture of new exclusive rights by the infringer. In other words, these bills allow infringers to make and copyright derivatives even if the copyright holder to the original work objects.

Okay, what does this mean to manufacturers in the crafting industry?

Most artists and companies offer an "angel" policy for creating a limited amount of handcrafted pieces for the purpose of selling at the PTA fund-raiser, church bazaar, etc. Many crafters take advantage of this opportunity to share their crafting with friends and do their community good. They feel comfortable and justified in investing in craft supplies because their crafting has a worthy "purpose." I applaud this with all my heart. When I (or anyone) design a kit with many components such as stickers, designed ribbons, papers, cards, designed buttons, word art, hand drawn lettering, etc., each of those small pieces and parts cannot possibly carry my copyright information on them. I also design art for die-cutting machines, which would be impossible to carry my name or copyright information. NOW, under current copyright protection, even though my name isn't on each and every piece, I still have protection. If the Orphan Works legislation passes, my art can, by de facto, become "orphaned" and the "property" of the end user. It allows for an infringer (crafter, competitor, manufacturer, anyone) to create and copyright a derivative work from the original design. Now, think about how much money a manufacturer invests in taking product to market and what they have to lose if their competitor, by de facto, captures the copyright to the art. And with no identifying copyright notice attached to each little bit and piece of art, well, it will be a "free for all," literally.

In the licensing industry, a guarantee of exclusivity is usually required. This will no longer be an option. Artists won't be able to make the guarantee nor will manufacturers be able to make it to certain big box retailers who often require it as part of the deal.

In my wildest imagination, I cannot imagine how a designer/artist will be able to continue offering art and design for this industry. People who have spent all their lives and devoted their professional expertise to this industry will be left without protection and a livelihood. EVERYTHING will become "clip art" and it will put the art into the hands of people who can and will, claim it as their own.

Subsequently, no artists will be around to make NEW art; we'll all be too busy asking, "Do you want fries with that?" And I'm NOT joking. (refer to Creative Leisure News, last edition, with no offense intended to anyone working, or is ABOUT to be working, in the fast food industry)

(Note: To contact Brenda, email brenda@brendapinnickdesigns.com. Visit her blog at http://brendapinnick.typepad.com and her website at www.brendapinnickdesigns.com. To read another commentary on the issue, click on "The Orphan Works Bills" in the right-hand column. To add your thoughts email them to CLN at mike@clnonline.com.)



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