Archived posting to the Leica Users Group, 2008/05/11
[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]At 05:14 PM 5/11/2008, you wrote: >On the other hand, should it be discovered as to who took an image, >who would be liable, the pilferager or the actual creator of the image? >s.d. ? Unrecoverable payment for use. Infringements can occur anytime anywhere in the world. However if the artist discovers an infringement: he will have to bear all expenses to discover, identify, and pursue the infringer. This will include attorneys' fees and court costs. The artist will not have the right to receive actual or statutory damages from the infringer. The artist can receive only what a court determines to be "reasonable compensation." Many artists will not be able to afford the expense of recovering payments for the unwelcome uses of their work. ? High risk placed on infringed artist who tries to recover work from orphan status. While the artist is always limited to "reasonable compensation" for recovery, there is no limitation on the dollar amount of damages or attorneys' fees the infringers can obtain from the artist in a countersuit. ? Because the outcome of any litigation will depend on the court's interpretation of ambiguous terms such as "reasonably diligent search," "reasonable compensation," "reasonable seller" and "reasonable buyer," etc., (as well as the other uncertainties inherent in any legal proceeding,) a single copyrighted work could be accorded orphan status in one legal proceeding, but not in another. ? Infringer can copyright derivative work: Under current law, the right to create a derivative work is one of an artist's exclusive rights. Section103(a) currently prohibits a user from copyrighting a derivative image that he's infringed. By contrast, the Orphan Works Bill will permit the infringer to copyright the derivative of the artist's work. ? Prohibition on injunctive relief: unrecoverable permanent orphaning in the case of derivatives. Under this legislation the artist will be prohibited from stopping the use of the derivative work infringed from his own. All the infringer must do is manipulate the image enough to meet the minimum threshold for defining a derivative work. This provision invites abuse: it will allow infringers to exploit the originals of countless artists, then use these derivatives to compete in the marketplace with the artists whose work they have manipulated. For example: ? Stockhouses and commercial archives could harvest newly-created "orphans," then crop or alter them slightly to make them "derivative works" and register them as their own "creative" works. Freelancers would then be forced to compete against their own lost art - and that of their colleagues, while willful infringers would have the competitive advantage of merely assimilating and transforming the work of others. ? Unfair competition, involuntary compulsory license, and a taking. In the cases where the court denies the artist injunctive relief for derivatives, the infringer will have to pay the artist nothing more than whatever a court determines to be "reasonable compensation." Meanwhile, the infringer can continue the infringing work. This means the artist will lose the exclusive right to his work, while being forced to accept a fee that is not based on his reputation, skill and standing in the market. http://capwiz.com/illustratorspartnership/issues/bills/?billid=11320236 Tina