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September 29th, 2008

Orphan Works: The Devil’s Own Day

Never Too Busy to Pass Special Interest Legislation 9.28.08

As lawmakers struggled Friday to clean up the mess on Wall Street, sponsors of the Orphan Works Act passed more special interest legislation. Their bill would force copyright holders to subsidize giant copyright databases run by giant internet firms.

Like the companies now needing billion dollar bailouts, these copyright registries – which would theoretically contain the entire copyright wealth of the US – would presumably be “too big to fail.” Yet it’s our wealth, not theirs, the scheme would risk.

Small business owners didn’t ask for this legislation. We don’t want it and we don’t need it. Our opposition numbers have been growing daily. So Friday, the bill’s sponsors reached for the hotline.

What is Hotlining?

Critics of hotlining say “that lawmakers are essentially signing off on legislation neither they nor their staff have ever read.”

“In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed.”
– Roll Call, Sept 17, 2007

In other words, a Senate bill can pass by “unanimous consent” even if some Senators don’t know about it.

The Devil’s Own Day

Senators Leahy and Hatch hotlined the Orphan Works Act twice last summer. Each time came at the end of a day, at the end of a week, near the end of a legislative session. Each time lawmakers were distracted by other issues and other plans. Each time artists rallied quickly and each time a Senator put a hold on the bill.

Friday the Senators found a new opportunity.

With lawmakers struggling to package a 700 billion dollar bailout to avert a worldwide economic meltdown, with the rest of the country focused on Presidential debates, with Washington in chaos and Congressional phone lines jammed, they hotlined an amended bill. On short notice, even the legislative aides we could reach by phone said they didn’t have time to read it. And so, while we were rushing to get out a second email blast to artists, the bill passed by “unanimous consent” – in other words, by default.

What better way to pass a bill that was drafted in secret than to pass it while nobody’s looking?

Since Friday, artists have been conducting bitter post mortems on their blogs. That’s understandable, but it’s not time yet.

“When Sherman arrived at Grant’s headquarters later that evening, he found the general – broken sword and all – chewing on a soggy cigar in the rain, which had begun soaking the battlefield.

‘Well, Grant,’ Sherman said to his friend, ‘we’ve had the devil’s own day, haven’t we?’

‘Yes,’ replied Grant, ‘lick ‘em tomorrow, though.'”

The Senate passed their bill Friday, but the House hasn’t. There’s still time to write, phone and fax your congressional representatives. Tell them not to let the House Judiciary Committee fold their bill and adopt the Senate’s.

Tell Congress to protect the private property of small businesses. Lick ‘em tomorrow.

– Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
Quote from “The Devil’s Own Day,” by Christopher Allen, January 2000 America’s Civil War Magazine

Tell the House Judiciary Committee not to adopt the Senate version.

We’ve supplied a special letter for this purpose:

Please post or forward this message immediately to any interested party.

Posted by Todd in Blog Home at 2:20 AM UTC

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September 27th, 2008

Please write your Representative again:

I’ve been saying that this bad bill wouldn’t persist if some major player didn’t see profit in it.

Guess what: GOOGLE has already said it plans to use millions of the images this bill will orphan.

If you’ve done it before, do it again!

It takes only a minute to use our new special letter.
Click on the link below, enter your zip code, and take the next steps.
Thanks to all of you who heeded the call to action yesterday.

Posted by Todd in Blog Home at 1:54 PM UTC

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September 26th, 2008

The thieves win round one:


Orphan Works: Risking Our Nation’s Copyright Wealth

The Senate has just passed their version of the Orphan Works Bill

Now we must try to stop the House Judiciary Committee from folding their bill and adopting the Senate version.

We’ve supplied a special letter for this purpose.



Posted by Todd in Blog Home at 9:17 PM UTC

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Orphaned Works … AGAIN!





To find your Senators’ phone numbers go to the Illustrators’ Partnership Orphan Works site:

At the top of the home page, click on “Elected Officials”
You’ll find a US map:
Click on your state,
Then “Senators,”
Then click on each Senator’s name,
Then click “Contact.”
This will give you their phone and fax numbers.

Please phone and fax them both immediately.

Posted by Todd in Blog Home at 4:41 PM UTC

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September 25th, 2008

Stormcaller, from start to finish

Lou Anders is the editor over at Pyr Books, and I’ve begun a series for him that is proving to be great fun. It is the Twilight Reign, by Tom Lloyd, and book one is called Stormcaller. This week Irene Gallo offered Lou and I an opportunity to showcase his book and my cover art for it on the website. Though I really ought to do these more often for my own blog, I jumped at the chance to show off a little and also help out friends. This is terrific cross-marketing, and very generous of Tor to showcase a competitor’s book!

Incidentally, Irene also has one of the very best art blogs on the internet, the Art Department.

Check out Stormcaller, from Start to Finish!

Posted by Todd in Blog Home at 3:44 PM UTC

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Geez, not again! Not still …

The orphaned works thing is back:


With the legislative clock counting down, we keep hearing that the Orphan Works bill is dead for this session of Congress.

Yet there’s been a last-minute flurry of activity to pass intellectual property bills and we’re mindful of comments made by the Chairman of the House IP Subcommittee, reported last March 26, that they might try to “roll the bill into either the Patent or IP bill.”

As a result, we think it might be prudent to write our representatives again and do 2 things:

First, update them on recent developments relative to the OW bill:

· The August 8 Small Business Roundtable
· The August 30 legal paper by copyright expert Jane Ginsburg

Second, remind them that you strongly oppose this bill, as do more than 70 trade organizations. Ask them if this bill comes before them yet this year, or is rolled into another piece of legislation, to consider these recent developments and vote no.

Considering the current meltdown on Wall Street, we might also ask them if it’s wise to concentrate our nations’ copyright wealth in the hands of a few privately owned corporate databases. Who can watch the ongoing failure of investment banks that were “too big to fail” without asking why government should want to create these giant, privately owned image banks on the backs of small business owners who neither want, need nor can afford them?

We’ve prepared a new brief letter for this purpose. It’s deep-linked here:

Read the rest of this entry »

Posted by Todd in Blog Home at 1:12 AM UTC

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September 24th, 2008

Stolen Prints to watch for

Recently, two different people have written to report the theft of prints they had purchased from me. That really, really pisses me off.

The first was stolen at Comic Con within minutes of Mike McMurry’s purchase. He set it down to pay for something else, and it wasn’t there when he turned to pick it up. It was a limited edition giclee of Drizzt’s Swords, number 002/300. It resembled the image attached, but also had a deckle edge and was remarqued with my own blood, so it was a rare piece. Only 3 have been produced as of this writing, and Mike now has number 003, so if you see one and the number looks like it might have been altered, it was.

Drizzt's Swords

The second image was stolen out of a suitcase belonging to Olaf Robrecht, at either the Vancouver airport or the Amsterdam airport, together with a print by Edward Reed and two by Jerry Vanderstelt. It was print number 002/300 of Rhinojets, as below.

Rhinojets Print

If you see either of these, contact your local authorities and point them to this blog post.


Posted by Todd in Blog Home at 1:08 PM UTC

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September 11th, 2008

Corporate Thieves Eyeballing My Artwork …

The Orphaned Works Bill just won’t go away. From my experience working for/with big corporations, this legislation persists because someone sees a way to make a lot of money with it. Please help your favorite artists protect their livelihoods by writing your representatives in opposition to this horrible bill.


With Congress back in session this week, Orphan Works rumors are back too.
According to some sources, deals have been made to pass the bills quickly.
According to others, the bills have stalled for this session.
Here’s what we know, independent of conflicting sources:

SEPT 6 OpenCongress Lists “8 Controversial Bills That Congress Still May Pass”
In Congress Gossip, by Donny Shaw, the article notes that the Orphan Works Bills “have been called out by concerned citizens… but are in a good position to quickly become law” in the next several weeks. The author quotes artist Brad Holland and attorney Larry Lessig in opposition to the legislation, and ends with this quote from “an anonymous OpenCongress user”:

“Isn’t it funny how music is getting huge, sledgehammer like protection in HR 4279 and visual art is getting devalued and made worthless by this bill, HR 5889? Music must just be soo much more valuable. It’s all about the corporate interests. Artists need to band together for our own protection and fight this dangerous bill. I’m an art student, and while I will never stop making art I’m worried I’ll be unable to make a living at it. It’s never been easy to be an artist without this kind of stuff coming along and making it impossible for us.”

Read the full article here:

SEPT 10 Authors Groups Submit Opposition Papers to Small Business Administration
The Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America have submitted over 60 papers and articles to the Office of Advocacy of the US Small Business Administration. These written statements were filed on behalf of attorneys, illustrators, designers, fine artists, photographers, songwriters, musicians, writers, members of the art licensing community and other small business owners. All are opposed to the bill.

These papers are the written statements submitted in conjunction with the Orphan Works Roundtable, conducted by the SBA August 8, 2008 at the Salmagundi Club in New York City. The package will be distributed to lawmakers in both houses of Congress.

The webcast of the SBA Roundtable is available here:

A PDF of the collected papers will be available soon from the Illustrators’ Partnership Orphan Works blog:

AUGUST 30 Copyright Expert Releases Analysis of Orphan Works Bills
Leading copyright expert Jane C. Ginsburg of the Columbia Law School has published a major Orphan Works piece, the first of a two part article:
Recent Developments in US Copyright Law: Part I – “Orphan” Works.

Professor Ginsburg’s scholarly paper raises several critical questions about the current legislation. Among various points, she notes that certain provisions appear to violate Article 10.1 of the Berne Convention, which prohibits prejudicial exceptions to an author’s exclusive right of copyright. She states that the preclusion of injunctive relief with respect to derivative works would appear to force authors to tolerate “even derivative uses they find offensive or that distort their works,” and she adds that this “has economic consequences as well,” depriving the author of the right “to grant exclusive derivative work rights to a third party. The bill thus potentially devalues the derivative work right.”

“The US proposals,” she writes, “may run afoul of EU restrictions” for various reasons, and adds: “[t]here may also be Berne- compatibility problems regarding the inclusion of non-divulged [unpublished] works in the proposed orphan works regime…[T]he bills should exclude “orphan works” which have never been disclosed to the public, and whose authors are still living.”

“The ‘progress of knowledge’ to which US copyright aspires,” she writes, “is achieved not only by putting works into circulation, but also by fostering conditions conducive to creativity.”

The full paper can be accessed here:

SEPT 6 French Magazine Telerama Sounds Orphan Works Warning
Main basse sur les images “orphelines” by Olivier Pascal-Moussellard. In this article, initiated by artist Etienne Delessert, the popular French magazine notes that 60 organizations oppose the controversial US bill and warns that it threatens to harm international artists as well “if they don’t wake up.” In opposition to the bill, it quotes Brad Holland and Dr. Ted Feder, President of the Artists Rights Society, which represents the estates of Matisse, Picasso, Chagall and tens of thousands of others. It also quotes Stefan Biberfeld, legal director of Corbis Europe, noting that stock agencies such as Getty and Corbis will benefit from passage of the legislation because it will allow them to market orphaned work without fear of being “intimidated” by copyright owners. The article is in French.

“LE FIL ARTS ET SCÈNES- Menace sur les droits d’auteur : une loi américaine veut rendre libre l’usage des photos, tableaux ou dessins dont on ne connaît pas l’auteur. A qui profite-t-elle ?”

“Simple question de bon sens, disent les uns. Hold-up légal, rétorquent les autres. Légal, car perpétré par les députés et sénateurs américains, téléguidés en coulisse par les géants d’Internet. L’objet du casse ? Les droits d’auteur des peintres, dessinateurs et photographes américains, mais peut-être aussi ceux de leurs collègues étrangers s’ils ne se réveillent pas.”

TRANSLATION: “Threat to artists’ copyrights: A U.S. law would free up the exploitation of photos, paintings, and illustrations whose creators cannot be located. Who profits?

Some maintain that “It’s a simple question of common sense”. Others retort that “It’s legal highway robbery.” Legal, because the law is being perpetrated by U.S. Congressmen and Senators remotely controlled by internet giants operating behind the scenes. The target of this break-in: the copyrights of American painters, photographers and illustrators, but perhaps also of their foreign colleagues if they don’t wake up in time.”

Read the full article:,33013.php

For ongoing developments, go to the Illustrators’ Partnership Orphan Works blog:

Take Action: Don’t Let Congress Orphan Our Work

E-mail your Senators and Representatives with one click. Go to:

This Capwiz site is open to professional creators and any member of the image-making public.
Sample letters have been provided. International artists will find a special link, with a sample letter and instructions as to whom to write. Two minutes is all it takes to write Congress and defend full copyright protection for creators.

Posted by Todd in Blog Home at 12:31 AM UTC

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