I Spoke Too Soon

I got this nervous note from the Society of Illustrators via the Advertising Photographers of America, so take it as you will. I wasn't aware that the subcommittee, headed by Congressman Berman, was being abolished. Congressman Berman, long a friend to creators, wanted a different chairmanship this time out (as Marybeth Peters told me in January.)

Lots of bills get slipped by this way, and the Orphan Works Bill is bad news for individual creators (sorry, Howard):

Orphan Works Update: Congress has reconvened today.

11.19.08

They're scheduled to be in session until Friday, although that could change. And although sponsors of the Orphan Works bill say publicly that it won't come up, sources have told us they'll try to use the lame duck session to pass it by means of another back room deal.

Currently the situation in Washington is fluid, but if deals are being made, they'll be made before the bill is placed on the Suspensions calendar. Then they'll try to pass it immediately. How we respond will depend on developments. But while we keep watch, consider this news from the National Journal, Nov. 12, 2008:

Conyers To Abolish IP Subcommittee On Judiciary Panel
by Andrew Noyes

"House Judiciary Committee Chairman John Conyers will abolish the Subcommittee on Courts, the Internet, and Intellectual Property in the new Congress and instead keep intellectual property issues at the full committee level, a Judiciary aide told CongressDaily today."

This is the subcommittee that spawned the Orphan Works Act and placed it on the "Rocket Docket." Yet remember last spring, when those lobbying for this bill warned us that unless we accepted it - no matter how bad it was - that the next chairman of the Subcommittee would be a copyright foe and would pass a worse one? Well, now the Subcommittee itself won't exist. So much for urging artists to bet against themselves!

This bill is very controversial. It would strip ordinary citizens of their intellectual property rights without due process. This is no way to pass legislation that would radically change US property laws. The bill can be fixed, but there is no time to fix it in a lame duck session. Stay tuned.

- Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership
______________________________________________________________

Over 80 organizations oppose this bill, representing over half a million creators.

U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world's artists.

INTERNATIONAL ARTISTS please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention.

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard Operator "I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act." The switchboard operator will patch you through to the lawmaker's office and often take a message which also gets passed on to the lawmaker. Once you're put through tell your Representative the message again.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Please post or forward this message to any interested party.

Stop the US Orphan Works, act now.

Orphans Still

The best news about legislation I've heard in a long time came across the transom this morning: the Orphan Works Bill is dead. At least for now.

The Orphan Works Bill is a misguided attempt which would make copyright registration practically worthless, because an unauthorized user could make certain claims about unsuccessful attempts to reach a copyright owner, go ahead and use the work, and the owner would be limited in the amount of damages he or she could collect.

Why spend $45 to register your copyright if you don't have the power of $150,000 for damages for intentional infringement? Beats me.

I think Congress should pass a bill that says I can build my house on any plot of land I just see sitting unused--after all shouldn't someone who's willing to make good use of something have rights over someone who just lets it lay around? That's a simple analogy, but the likelihood of me being able to convince a Congress person to let me do what I want with someone else's real property is just about zero. But somehow, I'm supposed to be happy when an infringer takes away my right to control my images.

Right.

Legal Advice to Writers

For more years than I can remember, I've been answering questions on a site called Hollywood Lit Sales, which was founded by a client of mine. Sometimes I wish Howie would just put a FAQ under the Ask a Hollywood Pro section.

The question I got today about writing a sequel to a film was actually on point, and I probably haven't answered it before, but many times I think I may need to break my fingers to avoid a snotty answer, many of which can be summarized below:

1. That's not a legal question.
2. Do some research before you ask a question.
3. There are no shortcuts to success.
4. If you can't spell, use proper grammar, or write complete sentences, you have no business trying to be a screenwriter.
5. An idea cannot be protected by copyright.
6. There is no such thing as a "common law" copyright in the U.S. after 1977.
7. I've answered that before when you wrote in under a different name.
8. Why do you insult me by wasting my time?

I know, I volunteered for this.

I don't want to be mean or even discourage people from following their dreams, but the first rule of being a writer is to WRITE. And write some more. And even more. And know that rejection is a big part of the game.

I can't count the number of people who have written to me saying they've got all these great ideas but they want someone else to write the script. Most real writers have more ideas than they can possibly deal with in their own lifetimes. They aren't interested in yours unless you can provide them with a great big bag of money and guaranteed credit. The people who write to me think they should be the ones who get the most money and credit.

An answer I give a lot is "why did you start this work without a written agreement" to the people who are in the middle of an ugly break-up with a partner who may have been a co-writer or just the idea person. Then there's the similar question about what happens after the ugly break-up where one of the writers has gotten someone interested in actually buying the spec script and doesn't want to tell the purchaser about the other writer. Nothing will hurt that guy worse than trying to sell a lawsuit to a producer. It's as if they think a former co-writer won't notice. People in the mid-west follow box office. Writers follow sales.

A screen writer needs a word processor, Final Draft, a printer, a ream of paper, and the delusion that he or she is talented.* A writing team also needs a written agreement about who gets first billing, how the credit will read, how the money will be split, and what happens in case of divorce.

*Credit to Russell Myers for the two variations of a Broom-Hilda strip featuring Gaylord Buzzard he did with a gap of about 25 years between them. The first one says "typewriter." My husband, writer Len Wein, keeps them both hanging near his desk.

Just Try to Keep This Plate Spinning

Over the past few days, I've been hearing that the artist responsible for the image on one of the California license plates has been trying to renegotiate the terms under which the state gets to use the image. There's an article in the Los Angeles Times, which you can link to here.

There are plenty of mistakes that were made in this arrangement. First of all, it is described as a "handshake deal," which is always a mistake but more so with something that is on-going. Then Wyland, an artist whose murals I've seen in several places (but didn't connect with the license plate until this article) claims he can change the terms of whatever agreement he had because he's the artist and owner of the intellectual property. Uh, that's a pretty stupid statement in terms of business arrangements which were done on a hand-shake. He's claiming the "license" was only for a term that is now over. If that is true, he could indeed ask for different terms to extend the use and the state has the right to find another artist.

If the new image looks too much like Wyland's, he might have a case for suing for copyright infringement but not if it's an independently created new image. Wyland doesn't have a monopoly on the idea of using a whale's tail to decorate a license plate for charitable purposes--despite the fact that the article quotes him as basing some of his claim on his "idea." Nope, only the expression is protected.

Wyland now gets 10% of the money for a plate he designed for Florida. Maybe he learned something about the value of his work after he did the California plate, got a real deal with Florida, and is trying to build on it. Apparently, Wyland wants to get 20% of the proceeds from the sale of the California plates to go to his own foundation--those of us in California pay a hefty premium every year to get these special plates and a nice portion of that goes to a particular charity or another. In the case of the whale tail, it goes to the California Coastal Conservancy. The photograph of the Wyland license plate appears at the left and it comes from the California Coastal Commission website.

It will be interesting to see what happens with this dispute. I've got a button which reads "This job would be great if not for the clients" and I sure wouldn't want either of these clients knocking on my door.

Here's my big advice for the day: even if it is for a cause you believe in, get the terms in writing. It protects both sides.

Personally, I've got the picture of Yosemite on my plates.

What First Amendment?

An article appeared in today's Los Angeles Times about the problems caused by the presence of paparazzi in Malibu. Here's the link. The problem is not limited to Malibu--wherever young celebrities hang out, so do photographers looking for that money-making shot. Apparently, the photographers travel alone and in packs in Santa Monica, Beverly Hills, and on Robertson (Avenue, Street, or Boulevard, I'm not sure) where there are lots of trendy boutiques.

Clearly, I don't go to many trendy places, because the only time I'm likely to see a swarm of photographers is when I'm walking a red carpet or when I'm in San Diego for Comicon, where the swarm follows the stars for their appearances. Last year, when David Beckham arrived in Los Angeles, I was driving home and saw a swarm of photographers along Pierce College's Victory Boulevard fence. Victoria Beckham was with the kids at a soccer match, so the little flies were buzzing. I'm not entirely sure it was legal for the school to keep the photographers at bay like that--it is a public school and it is, technically, public land. At least that's what the horse owners got told when we wanted to keep people from walking through the barns at Pierce and sticking their fingers in our horses' faces. Maybe Posh Spice smiled nicer than we did.

Like the situation at Pierce, I'm not sure that the mayor of Malibu, who is now trying to craft a law to keep the paparazzi at bay in her "Mayberry-like" community. For good or ill, the paparazzi are a part of the press, whether they are freelancers or in the employ of an agency. It seems to me that there are already laws in place upon which a particularly intrusive photographer can be dissuaded from pursuing his or her career, such as those against trespass, assault, battery, reckless driving, or false imprisonment.

While the main stream media often portrays the paparazzi as parasites, it seems that there is more of a symbiotic relationship between many of the paparazzi and their prey. People like Paris Hilton and Britney Spears would be long past their 15 minutes of fame but for their encouragement of the prying lenses. This isn't always the case. There are plenty of examples of the press or photographers actively goading celebrities into unflattering situations.

I want to make it perfectly clear that I believe everyone is entitled to some privacy. I don't believe that everything a celebrity does is news or my business. Going to a premier is public and most actors are gracious under those circumstances. Going out to dinner with friends or the family or going grocery shopping? That's private. Leave them alone. No one can be on 24-7 (except maybe I do expect a President who is, but I'm sorely disappointed these days) and even people who make their living by being famous are entitled to down-time.

California already has a law on the book by which a photographer can be prosecuted for invasion of privacy by using an extreme telephoto lens to get a picture within the confines of someone's home or yard. That may not be so bad, but finding a way to prevent reportage (and photographs are reportage, just like words are) because you don't like the "speakers" should face pretty high hurdles before enforcement. The problem is that many individual photographers aren't in any position to pay for the kind of legal fight opposing crippling legislation might cost. That's probably not a problem for TMZ and X17.

I've been hearing rumblings about what the mayor of Malibu is trying to do for several weeks. I'll be keeping my eyes and ears open for a more definite ordinance.

June 20 Program on Copyright and Trademark Issues

I'll be giving an overview of copyright and trademark issues concerning visual artists next Friday, June 20, for the Simi Valley Art Association. A couple of their members attended the program I did at Continental Art Supplies earlier this year and invited me to speak.

The 7:00 PM session will be held at the Community Room of the Simi Valley Public Library at 2969 Tapo Canyon Rd Simi Valley , CA 93063. Admission is free to students with accompanying adults. Non-SVAA members donate $7 at the door. (Proceeds go to the art scholarship fund for high school students.) The room has capacity for 120 people. My presentation should start about 7:15, after they finish with preliminary matters. There's plenty of parking and it's easy to find as it's next to the city hall.

So come on out and I can try to answer your copyright and trademark questions.

Intellectual Property Estates

I frequently get asked if I know any lawyers who can write a will for writers. That's because writers, like all visual artists, have an interest in seeing their intellectual property properly disposed of after death. It is not an area of the law in which I practice. Wills and trusts is an ancient and archaic area of the law and was my worst grade in law school (probably because the class was on a Friday afternoon for an ungodly number of hours and I could barely stay awake.) Lucky for me, it wasn't on the California Bar Exam except perhaps with some reference to community property, which I do grasp (no pun intended.)

My friend Neil Gaiman is on a crusade to make sure all writers have wills, because several other writers of both of our acquaintances failed to to do so (you can read the entire post here.) In both of those cases, the writers were not in good health for enough time to have taken care of the matter and didn't. Neil asked a lawyer friend of his, Les Klinger, to draw up a sample will, which he encourages people to pass on, so I will. You can find the PDF here. These are the suggestions Mr. Klinger makes:

1) Recopy the document ENTIRELY by hand, date it, and sign it at the end. No witnesses required.

2) Type the document, date it, sign it IN FRONT OF at least two witnesses, who are not family or named in the Will, and have each witness sign IN FRONT OF YOU and the other witnesses. Better yet, go to a lawyer with this form and discuss your choices!

California does recognize holographic wills--my husband and I both have them, although getting Len's through probate may wind up being pretty strange. Not all states do, however. The best advice is to take the draft to your own attorney and modify it to best fit your own situation. Most local bar associations can make referrals to specialists and the local version of the Volunteer Lawyers for the Arts is a good place to check as well.

Photographers are no less in need of wills to handle their photographic estates than writers are theirs. Photographs can have enormous historic value and it is a good idea to have someone in charge who knows what to do with them if your significant other or children don't. None of us knows what tomorrow brings, so don't be foolish. Get it done.

A New Twist on Infringement

Over at The Beat, Heidi MacDonald's blog for Publisher's Weekly on "comic culture," she reported that the entire contents of someone's website was "scraped" and published in a book selling for $100--without the permission of the website's owner. The story is here, with links to the offended website.

This is classic copyright infringement and the ripped off website owner should take immediate steps. The first of these is to get the material registered and after that 15 minutes, he needs to get a cease & desist letter out and, if appropriate, a DMCA takedown notice to any ISP which might be reproducing any of the material in the form of advertise the product. If the book is being sold on Amazon or e-Bay, I'd get letters off to them as well.

As most people should know, even without copyright registration, the website owner does own the copyright (and prudence says the copyright owner should have a prominent notice to that effect on the website itself.) It's just that registration is the key to the courthouse door and the key that opens the door to statutory damages and attorneys fees. It is cheap insurance.

The Copyright Office website has forms and instructions. The Library of Congress is hard at work trying to make on-line registration easier. You can get a deposit copy of a website by downloading it to a disk and then you should send it to the Copyright Office with the appropriate form and registration fee. Send it by Federal Express, or, if you live in the Washington, D.C. area, take it in by hand. U.S. Mail is slower. Registration is effective on the date of receipt by the Copyright Office, but it will probably take six months to get the certificate back. You can help yourself out by enclosing a self-addressed, stamped postcard with your registration materials with words to the effect of "The stamp of the Copyright Office hereon indicates receipt of the following: (1) [Description of the material being registered, i.e. PhotoLawyer's website and all contents on April 23, 2008 provided on one DVD]; (2) Registration form for [material being registered]; and (3) A check for the Registration Fee of [current amount.] The stamped date will let you know the effective date of registration. Then, if you want to file a lawsuit, you can state in your pleadings that registration has been applied for and the complaint will be amended as soon as the certificate is received.

Actual damages can be pretty low, which is what you are left with if you have not registered within 90 days of first publication or before any infringement has taken place. If you have a website, think about doing updates of your registration at least quarterly if you change your content frequently--you never know when someone might rip you off. In this case, actual damages would be based on the number of copies of the book sold. The website owner could also ask for, and probably get, the confiscation or destruction of the offending books (I'd probably ask for all the books and sell them myself) as well. So the damages might not be enough to make a lawsuit worth while.

If registration had been made on the material before this rip-off occurred, the website owner could have asked for $150,000 in statutory damages for each infringement (in this case there appears to be both a printed book and a disk of some kind) and attorneys fees, in addition to the confiscation or destruction of the material, which is a much better starting place for a law suit.

Copyright & Trademark Lecture

The California Lawyers for the Arts called yesterday and asked me to give a talk on "Copyright and Trademark Basics for Visual Artists," something I could probably do in my sleep since I've done so many of them.

This free brown-bag lunch event is at Continental Art Supplies, 7041 Reseda Boulevard, Reseda, California on March 17, 2008. On-site registration is at 11:15 a.m. and the talk is scheduled from 11:30 a.m. to 1 p.m. Call California Lawyers for the Arts at 310-998-5590 or e-mail them at UserCLA@aol.com. Space is limited to 25 people.

See you there, I hope.