Attorney's letter to the House-Tammy Browning Smith

Greetings!

Here is the letter that I sent to the House of Representatives.
NOTE - the letter to the House is different than the Senate because
the proposed bill is different. The House Bill does not have a
requirement for a Private Database. I have been surprised in my
dealings with the members of the committee from both houses. The
real issue is education. Please make sure you read the Bills and can
answer questions (i.e. I don't like XYZ and this is why). Many
congresspersons are trying to get their heads around this and
understand it. You do have permission to cross post this. It is
similar to the Senate letter, but different as well! Keep fighting
the good fight and we welcome any questions! Tammy ***

PS - We are SERIOUSLY considering a "fly in" where artists would come
to the capital and meet with the delegations in their states in
groups of 4 ish. Start thinking about it, we still need to formulate
this a little more!***

May 6, 2008

RE: Orphan Works Act of 2008 ñ H. R. 5889

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. THIS
IS A SERIOUS BILL WITH SERIOUS ECONOMIC IMPACT. Our law firm focuses
extensively on the creative arts industries and represents both
manufacturers and individuals through counseling, registration and
litigation. After a thorough review of the proposed Bill, the
following comments are offered from a legal professional who would
be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976

Artists relied on the provisions of the Copyright Act of 1976 that
did not require them to place the copyright notice on their work in
order for them to own their copyright. The additional provisions of
this bill do not change the language of ß401(a). The Act clearly
states that "copyrightÖsubsists from its creation." The Bill does
not state that this language will be changed to "copyrightÖsubsists
from its creation provided that you register, use the correct search
terms, and can pay for it." This Bill puts a large requirement on
individuals to register and use large amounts of financial resources
to protect an artistic work.

Databases and Reasonable Search

Copyright registration continues to be the most accessible
intellectual property protection available to the public. The fees
are minimal and the forms understandable so that an average person
could complete the task with relative ease. The proposed bill
changes that premise. It is my understanding that the House Bill
does not have a Private Database provision. While that is applauded,
it still creates a terrible issue regarding the "reasonable search"
requirements. Google databases and the internet are not sufficient
nor are Artists required to register with them. Copyright
Registrants will need to use carefully selected terms in order to
insure that a work is able to be found. The expertise required will
force registrants to seek legal counsel and other professionals at
substantial costs in order to obtain protection. This makes a "user
friendly" system inaccessible to many and then will create orphans
because many will no longer be able to register their works..

Millions of artists relied on the provisions of the Copyright Act of
1976 that did not require them to use a copyright statement. The
Artists who followed that law are now being punished and the new
provisions in essence create an Ex Post Facto law that punishes the
Artists for following a law in the first place. This is outrageous.

Reasonable Compensation & Relief

The majority of creative individuals do not make large sums of
money.

The term "Reasonable Compensation" opens the door for a significant
amount of litigation. Highly qualified individuals disagree on
what "reasonable compensation" would be on any given license. Daily
our firm works with licenses and knows the complexity that goes into
them. It is impossible to determine the value of a license without
having the license actually go to full term. Allowing an infringer
to only pay "reasonable compensation" would require an artist to wait
for compensation and then would limit his or her abilities to exploit
the art, as the art is already in use in public. For example, an
infringing use of artwork on textiles would prevent the rightful
owner from entering into a potentially far more profitable exclusive
licensing arrangement with a manufacturer of his/her choice.

Litigation is expensive. Many artists are only able to bring such
cases forward because of contingency arrangements made with a law
firm. This type of litigation has not over burdened the court system
nor has it been shown to be abused. This type of litigation permits
an injured person his or her day in court. This Bill would remove
such an opportunity. Not only would it remove any financial
incentive for attorneys and artists to work together, it would also
make it almost impossible to bring a case forward because of the
heavy financial requirements placed on the artist. The financial
(and technical) requirements of this Bill truly assume that an artist
is "guilty of failing to comply until proven innocent" instead of the
reverse.

Works Based on the Infringed Art

The most appalling and morally outrageous part of this Bill pertains
to the registration of new works created from the infringed upon work
and the prohibition of the injunctive relief if a work"Ö. integrates
the infringed work with a significant amount of the infringer's
original expression." The US Courts have never adopted a bright
line test in regards to the changes of an original work in order for
the new work not to be an infringer of the old. This bill suggests
that there is a rule for changing an existing work and making it a
new work, yet it fails to state the exact rule.

Failing to specify a rule creates legal havoc. Not only does it
create legal havoc, it causes substantial confusion to the public and
requires significant money to be spent in order for a judicial body
to determine what is a "significant amount."

International Implications

The global marketplace will become even more difficult to navigate
because of this bill. International Artists' rights will be greatly
compromised here in the US. This invites sanctions under the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS).

Furthermore, if a manufacturer were to rely on the US "Safe Harbor"
for orphan works and ship the merchandising containing an infringing
work to a Berne Convention country, the manufacturer could face stiff
penalties for infringement as the Berne Convention does not recognize
such a term as "orphan works" and states that copyright ownership is
free from formality. The Berne Convention gives US Citizens the
rights to protect their work in other countries, but this bill would
mean that US Citizens may not be able to protect his or her own
rights in their homeland if "formalities" were not followed.

Everyday Application

This Bill will take the copyright registration and enforcement out
of the hands of the individual artists and place them squarely in
attorneys' hands. It establishes systems to determine what is fair
and what is reasonable in a field where individual facts and
situations dictate the outcome, thus making "bright line" rules
burdensome and unfair. The windfall for the legal profession will
come at the cost of untold artists whose works will be free for the
taking. Citizens will no longer be able to register their own
copyrights without significant expertise or expense, and in fact this
Bill essentially states that copyright registration is not sufficient
to protect one's work. This Bill takes a piece of the government out
of the citizens' hands and places it in the hands of a select few.

Furthermore, the Bill gives persons the opportunity to register their
use of an Orphan Work, but it does not require any visual if
available. The registry does not give a person full absolution and
it is very possible that a company will open itself to liability if
it cannot truly prove a "reasonable search" and that it complied with
all the technicalities of the requirements. A cottage industry of
attorneys tolling for opportunities will surely develop.

Useful Articles

The most difficult part of the Bill that will truly create the most
legal difficulties comes to the term "useful articles." Useful
Articles share such a broad definition that it could be a nightmare.
The definition from 17 U.S.C. ß101 states:

A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article
or to convey information. An article that is normally a part of a
useful article is considered a "useful article".

A picture on a wall portrays the appearance of the article, but it
also decorates a room. Fabric is argued to be a useful article, yet
there are functions that it is not a useful article and a mere
decoration. The House of Representatives reliance of the definition
used in the current law demonstrates a lack of understanding of the
impact that this Bill will have and the legal havoc that it will
create.

There are many emotional arguments against this Bill, but there are
even greater procedural and legal issues that makes this Bill
impossible for the average person to use.

Economic Impact

A prime example of an impact of this Bill that has not been
considered is tourism. Rural Art Communities, Amish Crafts persons,
and Artisan Communities will be dramatically affected by this. Most
of these communities contain unsophisticated creators that bring
about substantial tourism dollars to many economies. At this time,
the only manner that many of these works are protected are under the
current Copyright Law. Many of these works would be made orphans and
subject to mass production. The charm, uniqueness and even financial
incentives for creating unique, originals will be gone. The items
created by these special creators would readily be available for the
mass market without a cost effective and reasonable way for these
creators to seek compensation.

Please know that our firm is willing to answer any questions that you
may have or provide testimony on this matter at any time. We are a
law firm that handles these issues on a daily basis. Our
representation is diverse including famous brands, famous artists,
manufacturers and those waiting to be discovered. I personally hold
a Juris Doctor and a Master of Laws in Intellectual Property. We
live copyright law on a daily basis and would see first hand what
consequences this Bill would have on both sides of this issue.

Thank you for your consideration in this matter.
Sincerely,

Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.