Dear Senator Coleman,

As a constituent, an artist, small business (henlestudio.com), and copyright holder, I am asking you to oppose this bill. I have already experienced my artwork being "used" (stolen) by eBay store owners, and Chinese rip-off companies, and do not have means to fight them for what is rightfully mine, as the large companies (like Disney) do.

I'm writing to ask that you oppose S. 2913, the Shawn Bentley Orphan Works Act of 2008. Despite the title of this bill, its effects will not be limited to those works that are true "orphans". Instead, it will affect any citizen's creative work, from professional works of art to Sunday paintings to vacation photos. The issue at stake is not small. This bill is in fact a radical reversal of copyright law and the logic of ownership of personal property.

Instead of providing solutions to appropriately deal with copyrighted work whose creators are hard to identify or locate, the Orphan Works Bill, will instead legalize the commercial or non-commercial infringement of any work of art, past, present, and future, regardless of age, country of origin, published or unpublished, whenever a copyright owner cannot be identified or located, and will disproportionately cause harm to visual artists and those who are rights holders of visual works.

Current copyright law protects everything you create from the moment you create it. But under this amendment, nothing you create will be protected from potential infringement, even if you undertake active steps to assert and maintain ownership - a daunting task for creators of visual works.

The Copyright Office studied the specific subject of "orphan works" - copyrighted works whose owners may be impossible to identify or locate. Yet this bill would drastically affect commercial markets, a subject the Copyright Office never studied.

I am alive, working and managing my copyrights. I can be found. My clients find me all the time. If 100 people can find me, and one person can't, why should that one person be allowed a free ride to use my work? Why should I have to go to court to contest an infringer's diligence or prove the value of my own work?

The consequences of this radical change to Copyright Law have never been subjected to a market impact survey. As such, there is no way to determine the harmful effects it will have on my markets, contracts and licenses, or on any of the collateral businesses that serve rights holders like me and are dependent on us - or on average citizens who will have to join us in eternal vigilance from the unwanted use of their personal property. Because there has been no study of the potential ramifications of this legislation, my business and thousands of other small businesses across this country are likely to be destroyed if S.2913 is passed.

This bill was planned behind closed doors, introduced on short notice and fast-tracked for imminent passage. In order for the concerns of creators to be heard, I believe any bill that constitutes such a profound change to the ownership of private property should be subjected to an open, informed, and transparent public debate.

Thank you for your consideration of this critical issue.

In an issue that may be rising internationally, legislation pending in the United States Senate and House to free up use of “orphan works” whose copyright owners cannot be found has won strong support from the recording, webcasting and library sectors but faces challenges from visual artists and the textile industry.
...
Libraries like the fact that the bills provide a safe harbour from statutory damages for librarians and archivists if a reasonable search is conducted, Sheketoff said. In addition, she said, the legislation does not affect fair use. The measures are the “first pro-user change to the Copyright Law in almost two decades,” Curtis wrote.
...

Illustrators, photographers and other visual artists, however, are mobilising to challenge the proposal.

“Our chief objective to these bills is that they’ve been written so broadly their effect can’t be limited to true orphaned work,” Illustrators’ Partnership of America (IPA) founder Brad Holland told Intellectual Property Watch. Forcing anyone who creates a visual work, whether professional or personal, published or unpublished, to register it with yet-to-be-created commercial registries will cause users to rely increasingly on the companies to perform a diligent search, he said. Unregistered works could then be infringed as orphans, he said.

The proposals will disproportionately affect visual artists because paintings, drawings and photographs are often published without contact information, credit lines can be easily removed by others, and pictures can be separated from the publications in which they appear, Holland said. And because visual artists often produce many more works than the most prolific author or songwriter, it will cost them more time and money to register and maintain tens of thousands of registrations," he said.