Brad Holland: Resale Royalty….Orphan Works….and on and on it goes

MAY 15, 2013
Dear Colleagues,

Today the House of Representatives will hold its first hearing on the new copyright “reform” movement. Members of the Judiciary IP subcommittee will hear from a group of anti-copyright college professors and Big Internet lobbyists who have prepared a lengthy “white paper,” which they’re presenting to Congress as a “consensus” regarding how copyright law needs to be changed.

The anti-copyright group calls itself the Copyright Principles Project, and you will not be surprised to learn that there are no artists – in fact no creators of any kind – among its members. In fact it’s mostly the same Orphan Works crew we’ve already beat twice, this time with a new name and a different strategy to turn copyright law upside down.

Our friend Chris Castle, a music attorney, has described the group this way:

“The messaging that The Project wishes to convey is that The Project is representative of a wide spectrum of views on copyright–the implication of which is that the white paper and the participants in The Project should be found to be trustworthy and believable.

So, in an effort to encourage Congress to look further – and to shoehorn artists into the Congressional debate – we sent a letter [on] Tuesday to the co-chairs of the Congressional Creative Rights Caucus.

Cynthia and I signed it and added “on behalf of” before adding all your names. I apologize that we didn’t have time to run a draft by all of you, but we were working on it until minutes before we had to send it out. I hope that’s okay.

This evening, we got a short email from Linda Bloss-Baum, a Washington lobbyist who works with Chris Castle and who advised us on the proper parties to contact:

“This is all great. I saw John and Amelia [the legislative aides to the Congressional co-chairs] today at a Creative Rights Caucus
event and followed up with them tonight about this letter. They both are quite excited about the exciting new mission of the Caucus.

“Will let you know how the hearing goes tomorrow.”

And we’ll let you know.

Best regards to everyone.

Brad

MAY 16, 2013
In response to Dena Matthew’s question “What is the “new” mission to which Linda is referring?”, Cynthia Turner’s response is: She is perhaps referring to the mission of the new Congressional Creative Rights Caucus which describes itself like this:

“The Congressional Creative Rights Caucus will serve to educate Members of Congress and the general public about the importance of preserving and protecting the rights of the creative community in the U.S. American creators of motion pictures, music, software, and other creative works rely on Congress to protect their copyrights, human rights, First Amendment rights, and property rights.”

Here is a link to the members of the Caucus: http://chu.house.gov/press-release/reps-chu-coble-announce-membership-new-creative-rights-caucus

On 5/16/13 7:49 AM, “Linda Bloss-Baum” wrote:

“Congressman Coble’s staff has graciously offered to make the ASIP letter part of the official hearing record today. I will be at the hearing this afternoon will let you know if any Members reference it in their statements.”
Best,

Brad

APRIL 29, 2013

Dear Colleagues,

Last Tuesday, about a dozen of us trooped down to Washington to testify at a Copyright Office Roundtable, regarding the Resale Royalty bill we’ve discussed before.

To recap: this is a proposed law that would require auction houses to pay a 3 1/2% royalty to artists, illustrators, cartoonists, etc., every time one of their works is sold for $10,000 or more at auction. It would pay another 3 1/2% to accredited museums to buy art and illustrations for their collections.

There seems to be consensus that the threshold figure of $10,000 is too high and should be lowered to $1,000; also that the bill should be modified to cover sales by galleries other than auction houses. The bill was written by Bruce Lehman and it was his strategy to keep the threshold high in order to minimize opposition from the art galleries. Once the bill was law, he argued, it could be expanded to be more inclusive. He has a point, but we’ll see. The language of the bill is still in flux.

The people who spoke for graphic artists were Cynthia Turner, Joe Azar, Terry Brown and me. (Terry was there to speak from his expertise about the growing market for illustration and not as a representative of the Society of Illustrators.)

For fine artists, the spokespersons were Ted Feder of the Artists Rights Society, Janet Hicks of One Mile Gallery (a colleague of Ted’s), the painter Frank Stella, and Bob Panzer of VAGA, a fine art collecting society (competitor of ARS) that represents the estates of Robert Motherwell and others.

We were joined by three colleagues from European collecting societies: Marie-Anne Ferry-Fall of ADAG, France; Gerhard Pfennig from Bild-Kunst, Germany; and Tania Spriggens of Design and Artists Copyright Society, London.

The big auction houses, Sotheby’s and Christie’s are opposed to the bill, of course, and they were there in force. They had several tag teams of lawyers and they kept tagging off to each other throughout the four panels.
They made every argument you could think of (and some you couldn’t) to argue that a resale royalty would hurt the art market. Their 4 big arguments were: a.) it would depress sales; b.) it would be unconstitutional; c.) it would constitute a Bill of Attainder; and d.) it would only benefit rich artists or their estates.

Collectively I believe we did a good job of debunking all their arguments.

First, our allies from France, Germany and the UK did an excellent job of citing studies and statistics to prove that the imposition of a resale royalty in their countries have not hurt art sales at all. Their ability to speak confidently from experience contrasted dramatically with the overblown scare tactics the auction houses were clinging to.

Bruce Lehman made short order of the constitutional issues too. He pointed out that every other form of creative artist in the US (song writers, authors, actors and other performers, etc.) all receive resale royalties or residuals for their work and that none of the legal provisions that make such payments possible have ever been ruled unconstitutional. Since visual artists are the ONLY exception, he argued, it was time – past time – for such a law to be instituted.

Bruce also disposed of the Bill of Attainder issue. In old English common law, a bill of attainder is one passed by Parliament to punish or harm a specific individual or group of individuals without benefit of trial. The practice had become so widespread in 18th century England and had acquired such a reputation for abuse, that when the framers wrote the US Constitution, they outlawed bills of attainder (Article 1,Section 9). The auction houses argued that Bruce’s bill would would single them out for “punishment” rather than affecting all galleries equally. Bruce made it clear that the thresholds he had proposed were hardly a form of punishment, and again cited various comparisons to other provisions in the law to prove his point.

As for the claim that only rich or dead artists would benefit from the bill, I pointed out that one of the auction houses (Christie’s) was already selling work I did for Playboy under the pre-1976 Copyright Act. That means, I said, that if this law had been in effect over the last 40 years, I might be getting royalties from Christie’s now and I noted that I was “neither a rich artist nor a dead one.”

For the last half hour of the afternoon, Rep Jerrold Nadler (D-NY), the bill’s principle sponsor, sat in on the roundtable and we were all able to address our points to him.He made it clear that he intends to introduce the bill in this session of Congress.

Cynthia and I want to thank Terry and Joe for giving up their day (and the time it took them to prepare) in order to support this effort on behalf of artists. Joe, of course, has become a mainstay of our efforts to create a collecting society, and it was great to have Terry back for the day. With his long background, great knowledge of our field and wide contacts, he’s an important resource and we’re pleased that he was willing to make the long trip to Washington on our behalf.

Finally I want to thank Cynthia in particular for her work on this issue over the last three years. Not only did she personally contact most of the hundred or so illustrators who (back in 2010 lent their names to help get this legislation off the ground); before the roundtable, she read all of the opposition papers on file with the copyright office, then summarized the key points for all of us (Ted and Bruce included) to review. It allowed all us to go in prepared.

Given the way the Congress is behaving these days, progress on this legislation may be slow. But we’ll keep you all posted. In the meantime,

Best regards and we hope to be in touch again soon,

Brad

MARCH 12, 2013
Dear Colleagues,

Last week we sent our Orphan Works reply comments to the Copyright Office.

We thought you might be interested in the following comments from the paper submitted by the National Writers Union:

In particular, the NWU endorses and commends to the attention of the Copyright Office and Congress the objections to “orphan works” legislation raised by Mr. Bruce A. Lehman3; the extensive submissions of the Illustrators Partnership of America regarding the potentially severe adverse economic impact of “orphan works” legislation on individual creators of works that would be at risk of being deemed “orphaned” despite being actively exploited4; and the analysis submitted by the Directors Guild of America, Inc. (DGA) and the Writers Guild of America, West Inc. (WGAW) of the meaning of, and the need to respect, the moral rights of creators which are guaranteed by the Berne Convention.

Let’s hope it all has a positive effect.

Best regards,

Brad

[For any future information on this subject, please contact to: the IPA and/or the ASIP – Society of Illustrators of Los Angeles]