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Brad Holland
The Return of Orphan Works: "The Next Great Copyright Act"
posted:
For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works.

Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership.

Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation.


Therefore we're asking all artists concerned with retaining the rights to their work to join us in writing. I'm especially asking everyone who posts here on Drawger to write, and if you would, to post your letters here as well.
 
Deadline: July 23, 2015

You can submit letters to the Copyright Office online here:

Read the Copyright Office Notice of Inquiry here.
Read the Copyright Office's 2015 Report on Orphan Works and Mass Digitization here.


Here are the basic facts:

"The Next Great Copyright Act" would replace all existing copyright law.

It would void our Constitutional right to the exclusive control of our work.

It would "privilege" the public's right to use our work.

It would "pressure" you to register your life's work with commercial registries.

It would "orphan" unregistered work.

It would make orphaned work available for commercial infringement by "good faith" infringers.

It would allow others to alter your work and copyright those "derivative works" in their own names.

It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

 
Background: The demand for copyright "reform" has come from large Internet firms and legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists.

The "reforms" they've proposed would allow them to stock their databases with our pictures. This would happen either by forcing us to hand over our images as registered works, or by harvesting unregistered works as orphans and copyrighting them as "derivative works."

The Copyright Office acknowledges that this will cause special problems for visual artists but concludes that we should still be subject to orphan works law.

"The Next Great Copyright Act" would go further than previous Orphan Works Acts. The proposals under consideration include:

1.) The Mass Digitization of our intellectual property by corporate interests.
2.) Extended Collective Licensing, a form of socialized licensing that would replace voluntary business agreements between artists and their clients.
3.) A Copyright Small Claims Court to handle the flood of lawsuits expected to result from orphan works infringements.

In your letter to the Copyright OffIce:

 
It's important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have "testified" that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.
 
So when writing, please remember:
– It's important that you make your letter personal and truthful.
– Keep it professional and respectful.
– Explain that you're an artist and have been one for x number of years.
– Briefly list your educational background, publications, awards etc.
– Indicate the field(s) you work in.
– Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.
– Our copyrights are the products we license.
– This means that infringing our work is no different than stealing our money.
– It's important to our businesses that we remain able to determine voluntarily how and by whom our work is used.
– Stress that your work does NOT lose its value upon publication.
– Instead, everything you create becomes part of your business inventory.
– In the digital era, inventory is more valuable to artists than ever before.
If you are NOT a professional artist:
– Define your specific interest in copyright, and give a few relevant details.
– You might want to stress that it's important to you that you determine how and by whom your work is used.
–You might wish to state that even if you are a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.

Because this is a complicated issue, we'll follow up next week with an expanded analysis and some thoughts of our own.

Cynthia Turner and I have filed multiple papers with the Copyright Office regarding this issue.You can download them from the Copyright Office website:

Remedies for Small Copyright Claims

January 17, 2012

Orphan Works and Mass Digitization

Initial comments, February 3, 2013

Orphan Works and Mass Digitization

Reply Comments, March 6, 2013

Orphan Works and Mass Digitization

Additional Comments, March 21, 2014

ADVANCED LIFE
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Advanced Life is a magazine published in Mexico by Acura Advance. In addition to a print version, they publish a digital edition that might well be a model of how magazines of the future will be delivered. It can be downloaded here.

 

Recently they contacted me and asked to do a cover story and interview about my work. It’s now out in their latest issue. Since the interview is in Spanish, I thought I’d post an English language version here. The interviewer was Tatiana Arce.


Q: You have said that Diego Rivera is one of your most important artistic influences, could you tell us why?
A: Two reasons. One graphic: the way he simplified forms, both in his drawing and in his compositions; and the other cultural: the way he reinvented modernism by stepping back from the abstraction that Cubism was leading art into and embracing as his theme the whole history and topicality of his culture.


Q: Are you interested in the work of any other Mexican artists?
A: Tamayo, Cuevas. I like them both for different reasons. And Posada, although I learned about him too late to be influenced by him. I discovered Posada by reading about Rivera. Diego cited him as one of his influences, so I looked him up too. After that, I came to think that Posada and I had a lot in common, except that I don't draw so many skeletons.


Q: The current image of Mexico, worldwide, mixes two separate aspects: one negative, regarding, corruption, drug lords and violence, and another positive, focusing on the economical growth of the country. If you were asked to illustrate this, what kind of images would come to your mind?
A: Well, pictures don't always come quickly. What I'd do if that were an assignment is internalize the problem, then empty my mind and start drawing. That's the best way to get answers. Or at least answers that aren't cliches. It's a way of getting past the structured thoughts of everyday life.


 


Q: You have often talked about your interest in creating images that are able to tell a story and stand on their own.
A: Well, I know I've said that I want pictures to tell a story, but that may not be the most precise way to put it. I used to tell editors that they should imagine they've locked me in one room and the writer in another and given us both the same assignment. Then when we hand in our work, you marry the two and trust that the marriage works out. It seems to me that you'll get better art out of an artist that way than by asking him to channel some writer's sensibility.


Q: With this in mind, do you think technology is making our societies shift back from an alphabetic thinking to a more ideographic communication?
A: Not necessarily. At least I hope not. Linear thinking is too important to the maintenance of a civil society. It's the only way people can communicate precise thoughts. The problem with linear thinking is that it often becomes an iron mask. Drawing is a way of thinking too. It's an irrational way of thinking and there are always dangers in that. Cultures that make a fetish of irrational thinking usually pay for it in the long run. But on the other hand, irrational thinking is the source of insights and breakthroughs.


Q: Besides Hawthorne, what other storytellers, writers or artists, have had an impact in the way you see the world?
A: The plays of Albert Camus: Caligula and The Just Assassins. Greek tragedies like Prometheus Bound. The writing style of H.L. Mencken. But before I came to read widely or see art (except for comic strips), I was influenced by my uncle Wayne, who was a postman in rural Arkansas.


Wayne was a fantastic storyteller. He drove around every day to all the local farms, delivering the mail and chatting with farmers and housewives. So whenever he'd come to our house for a visit, he'd have wonderful stories to tell.

 

They weren't dramatic stories, just accounts of ordinary, everyday events. Yet there was always something compelling about them. They weren't necessarily funny – I don't remember Wayne ever telling jokes – but there was usually something comic about them. His pacing and the way he combined words always made his stories more interesting and more amusing than they should have been. I absorbed all those techniques when I was a kid, and since I was always drawing things, the same sensibility just naturally came out in the pictures I drew.


Q: Just as images tell a story, there is a story behind every work. How has your creative process changed over the years?
A: It hasn't really. I'm essentially doing the same thing that I've been doing since I was five. I just have better opportunities now than I did in Kindergarten.


Q: Has any particular project forced you to modify radically the way you work?
A: No, not in the way you've put it. But since I never studied art, my natural curiosity about how to make pictures has led me to try out different approaches. And various assignments have given me a chance to try those things out.


Q: Can you share an example with us?
A: Some years ago, the Frankfurter Allgemeine Magazin gave me a series of dream assignments. Every month or so, they'd pick a theme and give me a cover and eight pages inside to do whatever I wanted to do on that subject. Then they'd supply an article (in German) to go with the art. One of those assignments was about high schools of New York City.


 


I began by sketching teenagers who hung around Greenwich Village after class. Then I used the sketches to do a series of conceptual paintings. One of them had two kids exchanging drugs in front of a great tortured wall, with a hungry black dog walking towards them. It wasn't much more than a scene drawn from life, except for what I did with the surface of the wall.

I wanted to cover the wall with graffiti. But I didn't want to just imitate graffiti; I wanted to get its spirit. I finally found a way by remembering that when I was a little kid I once got into trouble by drawing with crayons on a corner of my parents' living room. That's what New York City graffiti reminded me of. So in my painting, I covered the wall with crude crayon drawings of grotesque faces.


That painting became my favorite of the series, but what I liked most about it were the crayon drawings themselves. For months afterwards, I began to work crayon drawings into other assignments, first for the same magazine, then for others. Then some art directors began to ask for them. By then I had bought a big box of pastels – which gave the drawings a more sensual feel than what I had been getting with crayons – and the whole approach began to take on a life of its own.

To other people, it may have looked as if I had somehow adopted a new style. But for me, it was more like a phase; like a teenaged rebellion against the self-confidence that comes from being a professional. It kept me from settling into an artistic rut. Every once in a while I have to get back in touch with being five years old. It lets me feel as if I'm starting all over again and the challenge of always starting over keeps me interested in what I'm doing.

Je suis Charlie!
posted:
Roundup
posted:
Drawger's already put out a call for the best work from this year. So I guess it's rather late for me to be rounding up my favorite pictures from last year. On the other hand, last year will be last year all year this year. So with another month yet to go, I figure it's still early.
Serapions Fabel is a fabulous book of photographs drawn from 25 years of theatrical productions at Vienna’s Odeon Theater. It was published around Christmastime and is as beautifully produced as the photos that fill the book. Erwin Piplits is the theater’s Director and the book’s author. I designed the front and back covers and did the hand lettering.
The book’s theme is derived from the Greek myth of Persephone, the goddess of vegetation whose abduction by the god of the underworld threatened the extinction of life on earth; and whose annual six months release to the world of the living gave rise in the Greek imagination to the death and rebirth of the seasons.
Because in early agricultural societies grain was the staff of life, in the myth of seasonal rebirth, it became a symbol of resurrection as well. So early in the project I thought of grain as an image for the book’s back cover. It was simple enough to work as a foil for the front cover, but abstract enough not to compete with it. It was also an appropriate icon for the Serapions theatrical company: the Odeon is housed in a grand old building that was once Vienna’s Grain Exchange.
Star Messenger was one of two paintings I did for an issue of The Rotarian magazine. The art director was Deborah Lawrence, who now, regrettably, has left the publication. Deborah and I worked together on at least a dozen articles over the last few years and they were always great assignments. She often chose to use my pictures in pairs – one double page spread to start an article and another to end it. Her page designs and typography were always elegant. When she left, there was an outpouring of thanks, compliments and good wishes for the future from the artists and photographers she worked with.
Earth Mover was painted for the January issue of Playboy, a special issue because It was the magazine’s 60th Anniversary. My history with Playboy goes back a few years – hardly 60 – but pretty far back. Over that time I've done a lot of drawings and paintings for them: counting Ribald Classics, more than a hundred. Still, of all those images, this is one of my favorites and I was flattered that Justin Page – who did a wonderful job with the type and the layout –  thought to include me in the special issue.
Dark Angel was painted for Debora Clark at the American Bar Association Journal. The article: “Finding Humanity,” profiled an attorney for the damned. Originally I painted it in blue and gold, but the editor thought the colors were too pretty and asked for some changes. Instead, I decided to repaint the entire picture using Halloween colors. I think it was a good idea. They liked the new version better than the first one and so did I.

Cyber Terror was done as a cover for art director Steve Traynor at CSO, the data security magazine. The article was about how many financial institutions don't want to discuss cyber attacks against their companies because it opens them up to more attacks. I sent Steve three sketches and they picked this one. Of course the topic is bigger than whether a couple of corporations are reluctant to expose their vulnerability. Our culture's growing reliance on computers and the Internet has made our whole civilization vulnerable. With that in mind I wanted to keep the picture dark and abstract, with just the eyes and teeth glowing like a Jack 'O Lantern, but without the cuteness.

The Tempest wasn’t actually painted last year, but was published for the first time in December as a frontispiece for Taschen’s book 100 Illustrators, a book, incidently, that was picked by the Huffington Post as one of the year’s best art books. It’s a painting of Prospero, the magician of Shakespeare’s play about a bewitched island in the Caribbean. It’s one of a series I’ve been doing based on Shakespeare’s work. it was actually “published” for the first time here on Drawger, Christmas Eve, 2011.
Runaround was my cover idea for The Baffler’s issue about romance, love and sex. I’ve worked with Patrick Flynn since his days at The Progressive, but The Baffler is his masterpiece as an art director. Patrick has always used artists who have something to say, and he lets them say it. But he’s equally resourceful in marrying pictures to articles and his magazines always have a unity of design and a diversity of styles.
Balancing Act began as a loose sketch I did for Patrick some years ago at The Progressive. When he was wrapping up The Baffler’s political issue, he resurrected it and asked if he could use it on the magazine’s opening page. I said sure, of course, but said I’d rather do the drawing over, do it differently and do it in color. So I did. Years ago it was like pulling teeth to get editors to use full page art without an article to "justify" it. So I also want to credit The Baffler’s editor, John Summers, for giving Patrick the creative authority to run pictures like this.  
 
Love is an Inexact Science is one of more than 30 posters I’ve done during the last  year using quotations from articles I’ve written. I’ve published some of them here before. Last summer I showed a bunch of them to Patrick and he adopted this one for The Baffler’s front page.
Chador is one of my favorite drawings from last year, although it never made it past the sketch stage. It was one of several ideas I proposed for the cover of a monograph written by a former US ambassador about the political situation in Iran. For diplomatic rasons they picked one of the other sketches. It was more dramatic, and I liked the finished drawing a lot. But this one, with its simplicity and quiet symmetry, said more to me.
Hands of Time was done for the Spanish edition of Vanity Fair. It’s about how the watches brand IWC is helping the family of Antoine de Saint-Exupéry retain the rights to his book The Little Prince.  I proposed showing the Little Prince as a timeless figure defending himself with the hands of time. And while at first, I thought I’d do it as a painting, in the end I decided that adding color to my pencil sketch would come closest to the casual spirit of Saint-Exupéry’s own work.
Ariel’s Song is another painting for The Tempest,  Act I Scene 2: “Full fathom five thy father lies / Of his bones are coral made / Those are pearls that were his eyes / Nothing of him that doth fade / But doth suffer a sea-change Into something rich and strange.”
Robert Kuok was painted for Siung Tjia at Bloomberg Markets magazine. If I had picked my favorite images from last year a few months ago, I wouldn't have picked it. At the time, in fact, I disliked it and thought it a failure. But recently I ran across it and took a second look. That led me to conclude that it was the guy's face, not the painting I disliked and I had nothing to do with the way he looks. Robert Kuok is a Malaysian billionaire, the world's 62nd richest person. So maybe he looks the way he does from worrying about all that money. Anyway, it's not a pretty picture, but it's an honest one; and for that reason I now think it's one of the best things I did last year.
This Way, That Way was one of three paintings I did for a financial services client last year. The pictures were each done to go with a different scenario from the company's files – in this case, an account of the uncertainty that comes from having too many options. I thought of the tree because when I was a kid we lived on the edge of town and I spent much of my childhood in the nearby woods. It wasn't a very big woods, I knew every tree in it. At its farthest end, just before you came to a hobo jungle near the railroad tracks, there was a giant tree with twisted branches and tattooed bark. I used to climb up in it and sit in the branches like an owl. It was a great place to reflect on things. I had that tree in mind when I painted this picture.
Three Brothers was another painting done for the same financial services client. It wasn't a print assignment: the pictures were done directly for website usage. I supplied the client with multiple idea sketches, then we worked together on the layout, typography and text. I'm grateful to clients like this who realize that work done for digital usage is most effective when it has the same visual impact as work traditionally done for print.
 
Man Over Moon was painted for a University of Baltimore project entitled "Knowledge That Works." The art director was Gabrielle Boam (for whom I also did the Iranian monograph). I did two different versions of this picture. This was one, a standard size poster, to which I added hand lettering. The other was almost twice as deep and was used for a large street banner, 10 feet high. It was printed on fabric and hung as one of a series around the city, paired with a similar banner bearing the school's logo.
 

Judgment Seat was painted for SooJin Buzelli at Asset International, one of two pictures I did for her last year. I love the fact that she uses so much art in her publications and her design and typography are always inventive and beautifully realized. The article was about the need to set up support systems and this was SooJin's pick of the several sketches I sent her. I've never thought about what my favorite color is, but on the basis of the pictures I've been painting lately, I figure it must be blue.

Unholy Couple was another painting done for Justin Page at Playboy. The article was a fictional piece called “Hierofin” about a creepy midnight sabbath of famous science fiction writers, set in in California in the 1940s. While I was working on it, the movie Belle Star came on the TV, a thoroughly ridiculous film, but with Gene Tierny in it, her hair done up in a World War II style that reminded me of horns. That was the missing link I had been looking for to complete the image, so I adopted it for the woman and finished the picture.
Good and Bad was one of another two paintings I did for Deborah Lawrence at The Rotarian. Each picture was a mirror image of the other with the black and white of the faces reversed; and each ran as a full page and a half. In the beginning Deborah and I toyed with the concept of masks and I did two paintings using that concept. But the results looked more scary than was necessary for an article about ethics, so we started over and ended up with this approach.
One of a Kind was painted for Anthony Padilla at the University of the Arts in Philadelphia. I wrote about it here when it was published last fall. The purpose was to advertise the school's curriculum of both visual and performing arts. Anthony and I have worked together for years and I've done many of my favorite pictures for him. I designed the poster and did the hand lettering while Anthony's regular designer, John Coy added the body copy and school logo.
Ziggurat was a color sketch for the Odeon Theater's production of PaRaDiSo. I thought of it because the odd lettering in the show's title was based on archaic Hebrew writing – and that led me to the Biblical account of the Tower of Babel. As everyone knows, that story was about how certain people tried to shortcut their way to paradise by building a giant ramp to heaven – until God thwarted their plans, teaching them that heaven has to be achieved by spiritual rather than worldly means. I liked the picture as a picture, but realized that an image inspired by a cautionary tale was probably not the best one for a celebratory poster. So I did eight more sketches, including a crude last minute pencil sketch that became the basis for the poster we finally created.
PaRaDiSo was posted here last year, just as the Odeon Theater kicked off a multimedia production marking the 25th year of performances by Vienna's Serapions Ensemble. The show ran for a year and closed last spring. I've been doing posters for the Odeon since 1992 but because this was such a special event, I was happy that they asked me to design the poster for it  – and I'm still impressed that Erwin Piplits could look at the sloppy pencil sketch I did for it and pick it out of 8 other sketches I sent him, at least 3 or 4 of which I had done in color. The painting is not only one of my favorite paintings from last year; it’s the kind of thing I became an artist hoping to be able to do.

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