Artist Urges Creators to Fight Proposed Copyright Legislation

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The Orphan Works Act of 2008 is about to reverse 32 years of copyright protection. The new Bill before Congress will allow legal infringement on every photo, graphic image and sculpture. Artist Advocate Mark Simon warns all people that they may see their personal photos used in national campaigns without their permission.

They said it couldn't happen. They said Congress and the Senate would never enact a bill that would endanger the rights to our creative works. THEY WERE WRONG!

If artists and photographers don't register every photo and work of art in government certified private databases, they are about to give the legal right for anyone to infringe on their copyright.

"The Orphan Works Act of 2008", (H.R. 5889) and the "Shawn Bentley Orphan Works Act of 2008" (S.2913), were released to the House of Representatives and the Senate recently. While at first glance the law seems to be a 'last resort' for a search for the owner of any photograph, artwork or sculpture, the devil, as they say, is in the details.

An "orphan", as it relates to this legislation, is an original creative work such as a photograph, graphic image, or sculpture, which is still protected by its term of copyright, but the copyright holder can't be found. Actually, this bill makes it easy for searchers to pretend it's hard not to find copyright holders!


Artist advocate Mark Simon, president of, says artists and photographers cannot just sit back and let this Orphan Works bill pass! "As it is written, if it passes artists and photographers would have to register all of their creative works in all the upcoming private sector registries (those certified by the Copyright office) or risk orphaning all of their work. This means all past, current and future work could be legally used without permission," says Simon.

The problem lies in relying on the use of online electronic databases, or registries, to search for the owners of copyrighted works. The registries will employ new softwares to match an image to be searched with the images that are registered and if found will supply the searcher with the artist's name and contact information.

All someone has to do is search a couple of these registries and if a work doesn't show as a match (and these softwares aren't perfect, so registered work may still not show up in the results) it may be considered orphaned and they can use it for free.


The problem is that very few of the billions of copyrighted images will ever be registered on any of these registries, much less all of them. No artist has the time to pull out every work of art, sketch and photo they have ever produced and register them with every upcoming electronic database.


Even famous works of art could be orphaned, making it legal to infringe on copyrighted works. Art is already illegally used all the time, but this new orphan bill will empower and legalize even more infringed use of copyrighted works.

Religious painter Gary Lessord created a painting in 1979 called "The Crucifixion". According to Lessord, this same piece was used, without permission, by Mel Gibson as the major source of the graphic imagery in his "Passion of the Christ".

[The Crucifixion by Gary Lessord, copyright 1979 is available online at

Lessord's painting was shown internationally in a show sponsored by the Catholic Church. It was exhibited in museums around the country and was featured on the cover of the book "The Many Faces of Christ", featuring an introduction by Pope John Paul II. In other words, this is a work of art that is known by hundreds of thousands of people and being the ONLY work of art showing Christ wounded in such a way, it should be easy to track down Lessord as the copyright owner.

Under the current copyright laws, if found guilty Gibson and his production company are liable for the infringement.

If the new Orphan Bill passes, all someone would have had to do is search two of the registries and if the image doesn't show up, consider it an orphan and use the work. It won't matter how popular the piece is if Lessord doesn't register it in the same digital databases used in a search.

Artist Mark McCandlish understands the importance of stopping this legislation. He has had to go after a number of entertainment production companies, such as Lions Gate Productions and the company behind the show JAG, for using his work without his permission. Current copyright law has allowed him to sue and successfully collect large damages from the infringing companies.

"This has GOT TO STOP," says McCandlish. "It will only get worse--much worse if the Orphan Works legislation passes."

[Tomcats by Mark McCandlish. Copyright 1991 is available online at

If you don't think this applies to everyone, think again. Every photo that is on the internet or on a photo sharing service like Flickr, Shutterfly or Snapfish is up for grabs.

"Just imagine one of your photos was used by someone else on their site" says Simon as an example. "That happens all the time, but if there is no commercial benefit to them, it's no big deal. Right? Wrong!"

If a designer finds a photo on someone else's site (making it harder to find the true owner) and the owner hasn't registered it in the online databases, an unsuccessful search on a certified registry will orphan the photo, allowing its use without permission. The photographer could end up seeing their photo in a national ad campaign, possibly for a product he don't want to be associated with.


The current copyright law states that only the original artist can create and copyright derivative works (creative work based on an existing image) of their own creation. The new Orphan Works Act will allow anyone to make changes to someone's work and copyright it under their own name!

Proponents of this Bill say they are protecting the rights of the people to make use of existing creative works if they can't find the owner. Argues Simon, "WHAT RIGHTS? Just because someone can't find an artist, doesn't give them the right to use their work!"

"If you were walking down the street and found a car without license plates, would you feel it was your right to steal it, just because it was hard to find the owner?" asks Simon. "Maybe someone else took off the license plates. That happens to our creative work all the time. People eliminate or crop out our copyright notices. In fact, many of our clients insist we don't include that information in the first place."

"You must make yourself heard NOW", urges Simon. "Now is the time to call and write your Congressmen. This bill must not be allowed to pass! Every voice and letter count and we don't have much time to defeat this bill."


Go to to quickly find the phone number, address, e-mail of every U.S. Senator, U.S. Representative, Governor and State Legislator. Please be polite. Threats only work against us artists. We need to make a professional impression to be taken seriously.

The complete House and Senate PDF versions of this Bill are available at

AUDIO INTERVIEW LINK: to listen to an interview about the dangers of this legislation.

Mark Simon is an award-winning animation producer/director and speaker. He speaks around the world on subjects about art, animation and tv production. His copyrighted companies may be found online at and He may be reached at marksimonbooks(at)


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