Thursday, January 15, 2009

Art Space Talk: Martin Trailer (Concerning Orphan Works Legislation)

On the Myartspace Blog I have explored different viewpoints concerning orphan works legislation. Alex Curtis, the Director of Policy and New Media for Public Knowledge, expressed his support for orphan works legislation in an interview I conducted with him in August of 2008. Brad Holland , co-founder of the Illustrators Partnership of America (IPA) responded to the views of Alex Curtis and Public Knowledge on the Myartspace Blog after I contacted him expressing concern for the current legislation and the possibility of further legislative action concerning orphan works.

I think it is very important to explore the issues surrounding orphan works legislation. Thus, I contacted Martin Trailer. Trailer is a past President of Advertising Photographers of America (APA)-- another organization that has fought against different forms of orphan works legislation. In this interview Trailer gives some insight into the history of these controversial bills and the politics surrounding them.

Advertising Photographers of America has existed for nearly three decades. Since 1982, APA has worked to improve the environment for advertising photographers and clear the pathways for professional success. Promoting a spirit of mutual cooperation, sharing, and support, APA offers outstanding benefits and educational programs, while providing essential tools and resources to help members excel in business and achieve their creative goals. Recognized for its broad industry reach, APA works to champion your rights and those of your fellow professional photographers and image makers worldwide.

Brian Sherwin: Martin, you are the former President of Advertising Photographers of America (APA) and have been a strong advocate against Orphan Works legislation. At what point did you decide to take on this legislation and how are you continuing the fight now?

Martin Trailer: In 2005 APA and roughly 22 other visual arts groups formed the Imagery Alliance to oppose Orphan Works legislation at that time. The 2005 version died in committee.

In March 2008, 2 new versions of Orphan Works legislation came out, House and Senate versions. There were some differences, the Senate bill was much more onerous, but neither was good for working visual artists/photographers in APA's opinion. APA was invited to a briefing regarding the 2008 Orphan Works bills. We had only a couple of days notice and I decided with our Executive Director, Constance Evans APA should go to Washington for the briefing, if just to be fully informed on behalf of our membership. What was laid out in the briefing solidified our opposition to the 2008 versions of the Orphan Works bills.

BS: Can you briefly explain your main concerns about the potential bill in its current form? Perhaps you can describe how the current bill will change the definition of orphan works if passed… as well as how it will take away from many of the rights that photographers, visual artists, and others have at this time?

MT: We believed that there is a need for an Orphan Works bill, but what was being proposed was extremely broad, and potentially threatening to working artists, photographers included.

Depending on which bill House or Senate, both took rights away (it fundamentally changes copyright law) if you as the author could not be located and in the House bill one of the proposed requirements was in addition to registering your work at the copyright office, you now need for protection to add your images to one or two or more registries to be created. Depending on the number of images you have, especially when considering film, it could take years and hundreds of thousands of dollar to add your images to a (several) data base(s) so the potential user could find you. One issue was there is no limit to the number of these data bases, only that the House version required that the Copyright office endorse two of them.

The user "could" search a data base you have not added your material into, that may or may not be then considered the "due diligence" in searching for author. However, if you purse the infringement, you would do so using a lawyer in court, if you win, and prove they did not do the "due diligence" you can then sue for damages, if they prove they did what was required by the law, an undefined "due diligence" search all you can do is get the infringer to remove your image and you pay the legal bills. How much is anybody's guess.

BS: If passed do you think the Orphan Works Act of 2008 will drastically reduce the level of online activity concerning creative individuals using the internet as a platform for gaining exposure? In other words, do you think that artists will think twice before uploading their work online for feedback and for promotional purposes? In that sense, would you say that if passed it will cause the creative community to stagnate?

MT: First, the Orphan Works 2008 will most likely not be passed since we are now into 2009 and the bills will need to be re-introduced and/or re-written somewhat.
Thinking about this, yes, it might give artists pause to upload their work, and that is one of the dangers, decreasing new work as the 2008 bill(s) are written.

BS: Orphan works legislation has support from both dominate aisles of the United States political arena, correct? The bill has been supported by both Democrats and Republicans. Have any politicians opposed it so far that you are aware of?

MT: There are some odd bed fellows backing the 2008 Orphan Works bills. Some to my knowledge have quietly shown "concern". I honestly do not recall anyone coming out against the bill, but I have been told, and this is background, soon to be irrelevant, the Bush Administration would have vetoed the bill if it had made it to the Presidents desk.

BS: Does it concern you that President elect Barack Obama has not made an official stance for or against Orphan Works legislation? I know from the research that I’ve conducted that artists have been asking for him to make a statement since early 2007. The irony of this situation is the fact that the arts community, by in large, helped Obama into office and many have suggested that Obama will be the champion of arts and culture in the United States. Needless to say, there has been some criticism involving Obama concerning his his lack of response concerning Orphan Works legislation-- especially since he utilized the aid of artist Shepard Fairey who has infringed on the copyright of Rene Mederos and other artists in past. Thus, it would seem that Obama is inadvertently sending mixed messages about artist rights and copyright protection based on some of his campaign choices. Do you have any thoughts on that?

MT: President Elect Obama is very aware of Orphan Works and has a staff member (as a Senator) that is very knowledgeable having worked on one of the committees. Which way he will lean is something we will have to wait to see. There are serious players behind the bills, so it really will depend on the pressures.

BS: What is the best way for individuals to make their concerns known? Where should letters of concern be sent? Do you have any suggestions or helpful links for artists or other interested individuals who desire to help make sure that our rights are protected?

MT: The best thing we as individuals can do is stay aware, and when a call for letter writing or emails is called for, do so as quickly as you can. APA had in some cases less than a day to get the word out to the community to write their Senators and Representatives.

The Illustrators Partnership, Brad Holland and Cynthia Turner have really been instrumental vocalizing the art communities concerns publicly and privately. Constance Evans, past Executive Director of APA, doing the diligence that really made the difference getting the committee members to realize that the majority of the artist community were NOT behind these bills was instrumental.

BS: Pointblank-- do you think this legislation can be stopped or at least altered in a way that it will benefit professionals in the arts community rather than trample on their rights? In your opinion, will it be an uphill battle until the end?

MT: Yes, if we as a community continue to stay informed. There are some new proposals being written that will address the real Orphan Works issue that needs to be addressed without being so encompassing threatening the working artists ability to earn a living and protect their intellectual property.

I am an optimist and think that if we all stay aware, keeping the pressure on when called for, an Orphan Works bill can be passed that will benefit society, maintaining the incentive for artists/photographers to continue to make art/images and control their property, that way everyone benefits.

Links of Interest:

Advertising Photographers of America (APA) website --

Public Knowledge --

Illustrators Partnership of America (IPA) --

IPA blog --

Stock Artists Alliance (SAA) blog

Orphan Works Opposition Headquarters -- --

Orphan Works News --

Artists Rights Society (ARS) --

You can learn more about Martin Trailer by visiting his website--

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace --
New York Art Exchange (NYAXE) --

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