GAG collected at least $1,581,667 in illustrators' reprographic royalties.

FROM THE ILLUSTRATORS' PARTNERSHIP

4.27.2011

GRAPHIC ARTISTS GUILD LAWSUIT DISMISSED
Last week the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators' Partnership of America (IPA) and five named individuals.

In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a "business relationship" GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators' work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists "interfered" with GAG's "business" of appropriating these orphaned fees.

In her decision, Judge Debra James ruled that statements made by the Illustrators' Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a "common interest" in orphaned income; and that a "common-interest privilege" may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty.

Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote:

"Inasmuch as the statement [by IPA] was true, [GAG]'s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns."  (Emphasis added.)

And she noted:

"The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists."

Labor Department filings provided as evidence to the court document that between 2000 and 2007, GAG collected at least $1,581,667 in illustrators' reprographic royalties. GAG admitted to having collected similar royalties since 1996. GAG's officers have repeatedly refused to disclose how much money their organization has received to date or how the money has been spent.

DUTY AND COMMON INTEREST
The judge concluded that this situation justified an assertion of common interest by IPA. This means that "the party communicating [relevant information] has an interest or has a duty" to convey that information truthfully to others "having a corresponding interest or duty":

"The duty need not be a legal one, but only a moral or social duty. The parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information. Here the plaintiff Guild's factual allegations demonstrate that the defendants' statements were both true, and fall within the parameters of the common-interest privilege." (Emphasis added.)

We hope this decision will end the two and a half years of litigation during which GAG pursued its claims against IPA and artists Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators.

All defendants were participants in a public presentation sponsored February 21, 2008 by 12 illustrators organizations. The presentation was disrupted by GAG's officers and their attorney. A videotape of the event proves that statements which GAG alleged to be defamatory were made only in response to GAG's intervention, and that until that time, no speakers had mentioned GAG or GAG's longstanding appropriation of illustrators' royalties.

Last year, on January 12, 2010, Judge James issued a prior ruling dismissing nearly all of GAG's causes of action. This left only a claim asserted by GAG against Brad Holland. But in a response filed with the court February 4, 2010, attorney Jason Casero, serving as counsel for IPA, pointed out that GAG's remaining claim rested on an allegedly defamatory statement that Holland never made. When confronted with evidence, GAG was forced to admit it had "inadvertently attributed" the statement to Holland.

GAG subsequently filed new motions in an effort to revive its claims against IPA and the other defendants. Last summer the judge consolidated GAG's multiple motions and on April 18, 2011, she dismissed all ten causes of action against IPA and all the defendants.

REPROGRAPHIC RIGHTS AND ORPHAN WORKS
GAG served the lawsuit on IPA October 10, 2008, seven days after Congress failed to pass the Orphan Works Act of 2008. The Illustrators' Partnership and 84 other creators' organizations opposed that legislation. GAG had lobbied for passage of the House version of the Orphan Works bill. Mandatory lobbying disclosures document that GAG spent nearly $200,000 in Orphan Works lobbying fees.

In our opinion, the issues behind the lawsuit are greater than whether an organization should be allowed to benefit from the millions of dollars that, collectively, illustrators are losing. We believe the reprographic rights issue is linked to both orphan works legislation and the Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011.

Each of these developments involves an effort by third parties to define artists' work and/or royalties as orphaned property, and to assert the right, in the name of the public interest or class representation, to exploit that work commercially or to appropriate the royalties for use at their sole discretion. So far, judges have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. Now the challenge for artists will be to see that Congress does not pass legislation to permit what the courts have so far denied.

We'll have more to say about this issue in the future. For now we'd like to conclude by thanking our attorney Jason Casero, who provided us with a strong, incisive and heartfelt defense; his law firm, McDermott Will & Emery, which provided us with his services; the Volunteer Lawyers for the Arts of New York and its Director Elena Paul. We'd also like to thank Dan Vasconcellos, Richard Goldberg, and the over 700 artists and illustrators who in 2008 signed a petition asking GAG (unsuccessfully as it turned out) to drop the lawsuit; the support of so many colleagues was a great tonic at a low time. Finally we'd like to thank the representatives of the 12 organizations that comprise the American Society of Illustrators' Partnership (ASIP). ASIP is the coalition organization IPA incorporated in 2007 to act as a collecting society to return royalties to artists.

- Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership 
Recipients may post or email this message in its entirety to any interested party.
Link: http://ipaorphanworks.blogspot.com/2011/04/graphic-artists-guild-lawsuit-dismissed_27.html

Rubba-dub-dub, there's music in this tub...

Washboard Musician/ French Quarter Festival

This is one of those kind of drawings where you just commit to the line you started with. The musician pretty much stood in one spot, but those arms and hands kept on moving, so regardless of what his arms and hands did, I just drew it from my knowledge of anatomy and the basics of his gestures because there was no way to actually capture his movement. In essence, I faked it. He would be fun to color or paint because of the many values. He was a very dark black man with soft grayish hair that turned into white sideburns which help to define his face and only added to the white hat and shirt. Only the reflections in his sunglasses and the washboard were in color.

Copyright Ben Bensen III / 2011

Almost Forgot...Fear and Creativity Sketch# 4

Moderator Carrie Schwartz

Once again, this sketch is nice and I am happy with it, but it isn't an accurate portrait of Carrie. It was drawn by the light of a Power Point presentation. Carrie is a instructor at Tulane in New Orleans, but like me, lives in the village of Folsom. Besides teaching and creating curriculum for the ever changing digital world, she has her own studio with galleries to show her work. Earlier in her career, Carrie worked in New York in the fine arts world. I think she said she interned at Southeby's... I think. I dunno, I was busy multitasking... listening and trying to sketch her.

Anyway, she gave a two hour dissertation on the fear and being creative, addressing the creative process and how easily it can be derailed by insecurities that are as deep seated as anything we've experienced as kids. Fear can stifle the acceptance not only of our creative thoughts, but the confidence it takes to stay focused and see them through. We all have a tendency to be goal oriented and not enjoy the process of creating. And that's definitely me, who has been, for so many years, trained and molded by deadlines, artificial and real. Screw the process, meet the deadline!

Sometime down the line, I'll have to spend some time with her to get my head around the market here in Louisiana while still keeping my national market... and keeping my sanity, ha!

The outlook looks good!

Who's Zooming Who?

NOLA DMV and a ten minute sketch on 4/18/2011

Well, I am stewing in my own juices because I am trying to be in two places at once and it wasn't gonna work. Imagine that! I guess I should sign this sketch, but it is the Department of Motor Vehicles which seems the same no matter what state you're in. I tried to make it look interesting, but it must have been designed by the same drunk that designed the DMV on Rosemead Blvd in Pasadena, CA.

My mom allowed her driver's license expire which I finally noticed about one month ago. Not ever wanting to spend a day at the DMV, I figured it would make little difference now to rush into reissuing her another license especially since her birthday was six months ago. I later found that she let her insurance lapse and was still driving. Selfishly, I thought it just as well. Mom's not a bad driver for her age unless she drives further than about five blocks from home, which, when she does, produces phone calls from the police from another parish! So, it is probably better for all mankind that she be taken off the street. And then I realized that someone would have to take her to her two major weekly outings, "makin' groceries" at the neighborhood store and going to mass at St. James Major.

It's one thing to watch mom play bumper cars with other octogenarians in the grocery store isles while others whip out their box cutter switchblades to sever additional weight off of the produce. It is actually quite entertaining!

It is totally another thing to sit, stand, kneel and collapse in the pews of any church on any given Sunday. No extra indulgences doled out by the heavens is enough for me to ever take on that challenge ever again. In her younger days, mom would routinely arrive fashionably just before the offertory hymn and slip out the front door after receiving holy communion. Seldom did she even wait for the final blessing unless she was trying to impress someone... Or really felt she needed it that week for some unknown transgression.  My dad, who was no great Catholic, but a very respectful and punctual man, would hate to escort her to church because of her constant tardiness. I don't think her exiting early bothered him as much as arriving late.

No matter what the outcome, I had to try to save her independence and, silly me, I actually thought I could get the entire transaction completed in two hours... or so. Forget about it, though it did give me time to rehearse with mom our game plan to avoid having them totally shred her license and bar her from driving forever.

"Listen mom, I can't help you find your expired license or answer any questions on your behalf because they'll suspect something!" And, you can't shuffle your feet or teeter todder your way to the front desk... they are trained to notice those kinda things,"I said.

One hour and one sketch later, our number comes up. "Number 494, please go to section 13... number 494, section 13.

"Great, I thought, Section 13 is half way up the hall and mom's surely gonna pass out midway!"

I offered her my hand as an escort, but she deny it and strutted herself on over and down the hall to Section 13 like osteoporosis was an unknown noun. She sat down on a chair that normally would have her groaning,"CHEESE AND CRACKERS"as she would descend slowly downward. And when the attendant behind the desk asked for her license, her registration and her expired insurance card, she pulled it out of her wallet without hesitation casually carrying on a conversation about her three wonderful boys. Only when the woman asked mom for the model and make of the automobile did she defer to me for assistance.

Though we still have some hurdles to clear, having to return with more information about her situation, it seems mom's performance impressed the state enough to re-institute her driver's status. No written test and no driving test.  I was amazed, as well as, a bit befuddled at her performance and how well she played the part. I also wondered, possibly, who else she has played all these years!

Copyright Ben Bensen III /2011

That Ole Rockin' Chair's Got Me...

Pre-Paid Legal Meeting in Oklahoma

Sat in a bunch of meetings in Oklahoma City in 2009 and naturally had many subjects to draw as they eventually succumbed to the plethora of legal jargon, rhetoric and general back patting! This guy, seated in a rocker styled lounge chair in the convention center lobby, actually made an attempt to read the paper. Five minutes later, he was a goner!

A Room With A Great View...

Flaps Down!

 It is like riding shotgun all the way. I am like a kid when it comes to flying. I will take staring out of the aircraft window to just about anything. I don't care about travel tips, magazines selling you silly gadgets, the sports page, or video games. Just give me a drink, some minuscule package of pretzels and a window seat over the wing and let me and my imagination... fly!

The Waitress at Gus's is Called Norma...

The waitress at Gus's is named Norma. She has long "dirty blonde" hair that usually covers her face as she buzzes around the tables catering to customers, busing tables, straightening out seat arrangements, taking orders, generally entertaining the men with her good looks. I once asked if I could sketch her and she said I'd have to do it on the run, because she can't stop. But, I got a good chance to capture her spirit when she began to write the specials of the day on the bulletin board. I always compliment her on the ability to write each meal in one straight line and always within the borders of the menu board. That's not something everyone is able to do, especially if you have about a dozen or more entrees to enter.

So, while Norma stood still at the counter long enough to finish the menu board, I surreptitiously sketched away. Seated at the table was a morning regular, Paula Alario, originally from New Orleans, but now is a "fully grow-ed" country girl who now rides in barrel race competition. Paula saw my sketch and immediately recognized who it was.

Every now and then, I get it right!

Change is Good?... Ain't 'Dere No More!

Gabrielle Grant and Kelly Donnelly

These are one of a bunch of board members at the chamber of commerce that I drew on possibly the last meeting I attended. I really enjoyed our group and all the many members that participated in the many events and fund raisers. Sometimes, when one person leaves a company, club or association, the group chemistry isn't the same. I've always noticed that in the advertising business. There's something to be said about team chemistry, that's for sure, and I think the little lady I sketched in the background, Kelly Donnelly, will be sorely missed by everyone! Hopefully, she's headed for better opportunities...

More From "Fear and Creativity"...

Once again, not a real portrait of the man, but a nice sketch!

Here's the third of four sketches by the light of the Power Point screen. By his own admission, this man was not an artist, but is a patron of the arts. The moderator, enticing him to speak, said we are all artists in one way or another. I thought it a bit of a generalization and was a stretch to say that, but he looks more like an artist than I do, so maybe it's true. 

 We do need patrons of the arts, for sure!

Fear and Creativity Sketches...2 of 4

Distinctive look was an easy draw!

This woman had a very distinctive look that made it an easy draw in spite of the low light. She's forty-five years old and spent many years as Disney employee with Disney Cruises. She dressed in a variety of costumes on stage and on the deck including Minnie Mouse, was a song and dance person and is also an accomplished piano player. On certain evenings, she tickled the ivories in the boat lounge probably entertaining all those rum-soaked sea mice at the end of the day. She was at the seminar to deal with her fear of changing jobs since she was "released" by 'da Mouse! She said her husband told her to go find a job because her "aimlessly hanging around" was making him crazy. Sounds like a role reversal to me, ha!

Fear and Creativity Sketches...1 of 4

Art Association Administrator

Last Friday, which was appropriately April Fool's Day, I attended a seminar presented by St.Tammany Parish Art Association entitled, "Fear and Creativity." I rarely go to these kind of talks for fear they will discourage me even more than ever about being an artist.

Fear, the great motivator... at least for me!

I went to see how the moderator would present the subject. It was not exactly what I had hoped it would be, but still, I managed to glean some interesting concepts. One was particularly poignant to me, which said, "Don't confuse Creativity with Analysis. They are two different disciplines." I'm very analytical and less impulsive as an artist and will analyze concepts or reasons to paint, ad nauseum, to the point that, in my head, the project is completed totally in my dome with no need to continue further. Never mind that no one ever sees it... I have solved it and there's no reason to go through the hassle and head trips of turning it into a visual. I realized that, for me,"the road" is insignificant. It is the "destination" that gives me the most satisfaction and with that analysis, I have finished the project.

Much of these attitudes come from being trained as a commercial illustrator validating these tenets with each finished product. Screw the process, no one cares how you got there or what an "experience" it was... how does it look finished? It is a rather negative approach but it has worked for me for most of my career.

Anyway, I sketched this portrait and three others in the "power point light" of the seminar. I feel it is a pretty good likeness.

To hell, how I got there!