Attorney's letter to the Senate-Tammy Browning Smith

United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Sent Via Facsimile

RE: Shawn Bentley Orphan Works Act of 2008 ñ S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. 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.

Public Notice and Private Databases

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. The use of private databases creates two very
significant problems:

1) Private Databases force individuals to become intimately
familiar with search terms and remain current on any case law that
would direct what constitutes a "qualifying search." The bill
requires the use of search terms that require the average public to
become attorneys or highly skilled researchers to know what terms to
use so that a work of art can be located.

2) The cost for registration for both the US Copyright Office
and any private database(s) could be substantial to most artists who
create multiple works in a short time frame. As well, if an artist
does not feel comfortable filing such documentation due to the
burdensome requirements, he or she will need to hire an attorney
which will prevent the vast majority of artists from registering
copyrights.

The use of search terms and registration with the US Copyright Office
and private databases takes some of our country's greatest treasures
and places them in the hands of private individuals. The Federal
Government is privatizing part of a constitutional function (the
protection of intellectual property). The burden placed on the
individual artist is a far greater crime under this Bill than the
potential that a work of art will not be able to be used because the
owner is not found. The passage of this Bill would eventually mean
there will only be works of the past. It will be almost impossible
for the individual artist to survive and protect his or her work
while making a living as an artist.

Reasonable Compensation & Relief

The majority of creative individuals do not make large sums of
money. The large corporations, libraries, museums, and the like that
are attempting to have this bill passed hold the position that
national treasures are being lost because the creator cannot be
found. This could not be further from the truth. There is a great
amount of art available for use and many times the compensation asked
is minimal.

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.

It is true in the realm of merchandising that you only get "one shot"
at the public. The artist's right to fair compensation and further
exploitation would be ruined. In this scenario, the artist would
only be able to be compensation for the use and not the loss of the
art's exploitation value. Even personal injury victims are allowed
some type of future or speculative damages, but creators of art would
not be permitted such rights.

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."

Thieves are not allowed to keep the stolen property, but this Bill
would allow infringers to steal work and call it their own. Mistakes
happen and innocent infringement occurs. However, an artist loses
twice under the proposed bill. An artist loses money and future
opportunity when the work is stolen. The artist loses a second time
when the infringer is allowed to register the work and then claim it
as "new" which creates commercial value. Once again, a criminal
can't be tried twice for the same crime, but this Bill permits a
victim to lose twice from a crime.

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" rule
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.

68% of all Americans say that this nation is in a recession. The
nation is at war against terrorism. Untold millions of American's
are without jobs. The need for this type of Bill that would take
opportunities for the average American to make a living is shocking
and beyond comprehension. National Treasures are not going unused,
but large corporate interests are trying to get to items that they
couldn't use thus far, so that profits can be reaped. It's about
the economy and not copyrights. It's time to get back to the
problems facing the nation and move forward to creating a fair
economy for all.

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.