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Six Misconceptions About Orphaned Works

My friends list today has been swept by a storm of fear, uncertainty and doubt surrounding this article by Mark Simon on Animation World Network about the issue of orphaned works. "Orphaned works" are creations likely still under copyright -- photographs, illustrations, written works, music, &c. -- for which the original creator cannot be found, and thus their copyright status cannot be determined. Orphaned works present a thorny problem in today's litigious society, because when the question of "who owns X?" can't be answered, very few people are willing to do anything with X if they fear that they'll be sued for it.

For instance, suppose that you have your parents' wedding album, and the photos in it are starting to fade. You go to a photo shop to get the pictures scanned and digitally retouched, so that you can save them on DVD to show your kids in ten years. However, the copyright on those photos belongs to the photographer, not you or your parents. The photo shop tells you that unless you can get permission from the copyright holder, they can't do anything with the photos. Do you know who your parents' wedding photographer was? Do they remember? What if the company the photographer worked for has since gone out of business, and nobody can track down the individual person who took the photos? The pictures are "orphaned works", and no one knows who owns the rights on them.

Or what if you're cleaning out your great-aunt's attic, and you find a box full of pictures of your town as it was 100 years ago? The local history museum would love to add them to its collection -- but it can't, unless you, your great-aunt, or somebody can track down the original photographer and secure his or her permission (or the photographer's estate's permission, if the photographer's dead) to donate the photos. (Copyright in the United States lasts for life of the creator plus 75 (EDIT: 70, for works created today, older works are weird, see here for details; thanks for the correction, internets) years, so chances are, even 100-year-old photos are still under copyright. Thank Disney for that one, guys.)

But Mark Simon apparently believes that enacting legislation to handle orphaned works in a way that protects people who legitimately try to find the original copyright holder, but can't, will lead to the effective invalidation of copyright on ALL UNREGISTERED ART EVERYWHERE OMGZ CALL OUT THE CAVALRY. His article, which I linked above, is miserably poorly researched, jumps to completely illogical conclusions, and, most retardedly of all, implores artists to letterbomb Congress in protest of proposed legislation which does not actually exist. Someone please tell me where this guy is getting the crack he's smoking, because I want to avoid that streetcorner and everything in a six-block radius, kthx.

So, here are six misconceptions that are making the rounds about orphaned works, and a short explanation of why each one is a misinterpretation or just a flat-out lie. I also give links to useful supporting material, and resources you can use to keep track of this issue as it evolves.

1. "There's legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!"

Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet. That gives you, artists and authors, time to get familiar with the actual legislative landscape, research what might be proposed in a bill, and decide for yourself what position to take.

Back on March 13, Marybeth Peters, the Register of Copyrights, made a statement before the House Subcommittee on Courts, the Internet, and Intellectual Property. It discusses orphaned works in detail, and mentions previously proposed legislation that expired when the 2006 House session closed. It was never voted on.

I advise everyone to read Ms. Peters' statement. It's long, but it's in plain English. (Okay, she does like to use big words. But it's not legalese.) If you read it, you'll see that the Copyright Office is in fact concerned about how to handle orphaned works in a way that's fair to original copyright holders. I especially recommend you read the section titled "The Proposed Solution". Read it carefully. It's pretty clear that Mark Simon didn't.

If you want to keep an eye out for upcoming legislation that might affect this issue, THOMAS is a great place to start. I'm also a big fan of GovTrack, which scrapes THOMAS and sorts bills into categories based on topic -- you can even get RSS feeds of bills related to the topics of your choice.

2. "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"

That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists "from the time the work is created in fixed form" -- in other words, the instant I hit "post" on the form I'm typing this blog post in, the instant you step away from the canvas, the instant you hit "save" in Photoshop, that work is "in fixed form" and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

The Copyright Office considered the idea of a registry, but shot it down (emphasis mine):
In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work.
In the same paragraph, Ms. Peters also noted that the Copyright Office finds it important for any new legislation to cover both published and unpublished works. Existing copyright law, as we saw above, covers all works from the moment of their creation.

It is already possible to register a copyright with the US Copyright Office. It is not required, but registering a copyright gives you a few advantages in the event that someone illegally copies your work. If your copyright is not registered, you may claim "actual damages and profits" -- i.e., the value of the work. (I think this also means that you can recover whatever profits the infringer made by using your work illegally, but I'm not sure about that, and I'm not a lawyer, so don't quote me on that one.) If your copyright is registered, you may also claim statutory damages (between $750 and $30,000 per work -- up to $150,000 per work if you can demonstrate that the infringment was willful, i.e., the infringer knew the work was copyrighted but used it anyway) and attorney's fees -- in other words, if you win the case, the infringer has to pay your lawyer for you. (Whee!)

But, again, there is nothing that indicates that registration will be required. Either Mark Simon read Marybeth Peters' statement wrong, or he made it up.

3. "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"

Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it.

Now, Mark Simon seems to be flipping his shit over Ms. Peters' recommendation of
a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.
Perhaps he's envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a "good faith" search and forges ahead with an infringing use. That's not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work's original owner, the "good faith" provision doesn't apply. And even if the "good faith" provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.

It's all there in writing, folks. This isn't that hard.

Now, the Copyright Office also proposes a "safe harbor" provision for very specific cases:
a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement.
In other words, if someone infringes your work for nonprofit purposes and you pop up and say "um, no, that's mine," they must immediately take it down. Otherwise, the safe harbor provision does not apply, and they must compensate you for their use of the work. Furthermore, if they don't immediately take it down, they're also subject to the No Electronic Theft Act, which sets out the damages I described above and also establishes criminal penalties for copyright infringement, even when no money changes hands. Nobody is suggesting that the NET Act should go away either.

The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple.

4. "Someone else could register the copyright on my work, and use that against me!"

Nope. Under US copyright law, only the author of a work, a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author, the owner of exclusive rights (i.e., someone to whom you have transferred copyright under a "work for hire" agreement), or the duly authorized agent of one of the above may file for copyright registration.

Again, I'm not a lawyer, so I can't speak with any authority on what happens if somebody illegally registers a work for which they don't own the copyright. An illegally registered copyright will almost certainly have its registration revoked (freeing you up to register it yourself, if you so desire). The application form also states that "any person who knowingly makes a false representation of a material fact in the application for copyright registration .... shall be fined not more than $2500." Check out Title 17 of the United States Code, section 506(e) if you want to know more.

5. "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"

Honestly? This is the state of things already. As I pointed out to karine, the Copyright Office does not employ an elite squad of cybercops searching night and day for infringing uses of copyrighted works. They don't have that kind of money. Identifying infringing uses, sending the infringer a takedown notice, and bringing legal action if the infringer refuses to stop infringing are already your problems. They will continue to be your problems for the foreseeable future.

I've also heard some FUD claiming that if someone infringes your copyright and you don't catch them within a certain period of time, you won't have any legal recourse. I have no idea where this misconception came from, but it's also wrong. The important thing to remember here is that copyright is not trademark. Trademarks can be lost if they're not enforced, but copyright is forever (ok, life plus 70). "Well, so-and-so infringed and you didn't sue them!" is not a legitimate defense. Neither is "I've been using this for the last N years and you never said anything!" If you catch someone infringing your copyright at any point in your life, or your estate catches them at any point up to 70 years after the date of your death, you do have legal protection.

6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"

This is quite possibly the most ludicrous claim that's being bandied about. According to the Copyright Office, public display of a work does not even constitute publication -- you have to sell copies, or tell other people they can distribute copies, in order for the work to be considered "published". (EDIT: what I tell you three times is true, I am not a lawyer. The Copyright Office's FAQ does not opine about content displayed on the Internet, but you're probably better off disallowing redistribution anyway if this is something you're concerned about.)

Furthermore, as we've discussed above, a work need not be registered with the Copyright Office, or with a private registrar, to be covered by copyright, so if someone infringes on your work and you send them a takedown notice, the work is not orphaned. Full stop. I cannot repeat this enough times.

Copyright is automatic and does not change unless you transfer your copyright to someone else, die (in which case it's automatically transferred to your estate), or commit the work to the public domain. "Orphanedness" is a state which gets removed when the copyright holder speaks up. Even placing a work under a distribution license, such as a Creative Commons license, doesn't change the fact that you own the copyright.

Also, for those of you considering formal registration with the Copyright Office to have the option of statutory damages, here's a neat loophole you can use. Unpublished works can be registered as a collection, as many works in the collection as you want, in a single filing, for one filing fee of $35. Since merely putting your artwork up for display on the Interwebs doesn't constitute "publication", you could register "All My Artwork From The Last Ten Years" as an unpublished collection for a whole $35, and sue the pants off anyone who infringes anything in that collection. (This would also be a fun way to test whether the Copyright Office considers works displayed on the net to be unpublished. If you try this out, do let me know!)


I hope this addresses any fears you might have about orphaned works and the sort of legislation that might come up regarding them. If you have any questions, please feel free to comment and I'll do my best to answer them. Likewise, please feel free to link this article or reproduce it in full or in part; I am placing it under the Creative Commons Attribution-Noncommercial-ShareAlike 3.0 United States license. Creative Commons License

kynn also has some cogent observations about orphaned works, Mark Simon, his sources, and some follow-the-money fun here.


( 324 comments — Leave a comment )
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Apr. 12th, 2008 07:42 pm (UTC)
However, the copyright on those photos belongs to the photographer, not you or your parents.

How is that not a work for hire, with the copyright transfered to the folks paying the photographer for his work?

Edited at 2008-04-12 07:48 pm (UTC)
Apr. 12th, 2008 07:49 pm (UTC)
Apparently a lot of photographers don't set it up as a work-for-hire contract because they want to be able to use the photos in promotional materials or for other purposes later, which is either impossible or really difficult under existing work-for-hire provisions. (All the writing I've done for roleplaying game companies was work-for-hire. I can't use it for anything, except under fair use.)
(Deleted comment)
(no subject) - perrrfect_angel - Apr. 14th, 2008 05:42 am (UTC) - Expand
(no subject) - perrrfect_angel - Apr. 14th, 2008 07:35 am (UTC) - Expand
(no subject) - (Anonymous) - Apr. 14th, 2008 09:43 pm (UTC) - Expand
Work for hire; use of work product for self promotion - (Anonymous) - Apr. 14th, 2008 09:03 pm (UTC) - Expand
(no subject) - wolfsongblue - Apr. 16th, 2008 01:47 pm (UTC) - Expand
I like your hair) - sdelatpravilno - Apr. 18th, 2017 01:28 pm (UTC) - Expand
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(no subject) - maradydd - Apr. 12th, 2008 07:50 pm (UTC) - Expand
(no subject) - sajinokami - Apr. 13th, 2008 05:37 pm (UTC) - Expand
(no subject) - wolfsongblue - Apr. 16th, 2008 01:51 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 13th, 2008 03:54 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 13th, 2008 03:56 pm (UTC) - Expand
(no subject) - elfwreck - Apr. 14th, 2008 06:39 am (UTC) - Expand
Work-made-for-hire - (Anonymous) - Apr. 14th, 2008 09:39 pm (UTC) - Expand
Re: Work-made-for-hire - (Anonymous) - Apr. 16th, 2008 12:43 pm (UTC) - Expand
why USA wedding photography isn't a work for hire - (Anonymous) - May. 14th, 2008 07:58 pm (UTC) - Expand
(no subject) - (Anonymous) - Oct. 13th, 2008 06:13 am (UTC) - Expand
(no subject) - ghds_hair - Jun. 26th, 2010 03:47 am (UTC) - Expand
Apr. 12th, 2008 09:03 pm (UTC)
This is an excellent post. Thank you.
Apr. 12th, 2008 09:08 pm (UTC)
Thanks! With all the legal foo in there, that means a lot coming from you. :)
(no subject) - wealhtheow - Apr. 12th, 2008 09:12 pm (UTC) - Expand
Apr. 12th, 2008 09:17 pm (UTC)
Work for hire changed in 1976
I'd always thought that hiring a photographer was automatically work for hire and that the person who paid owned the copyright. However, as Walmart has just found out, that isn't the case. Absent a specific, written transfer of rights from the photographer you don't own the rights to works you commission.
Apr. 12th, 2008 09:24 pm (UTC)
Re: Work for hire changed in 1976
Good to know! Thanks for the heads-up. Got a cite, or do I need to do some digging?
Re: Work for hire changed in 1976 - mouser - Apr. 12th, 2008 11:40 pm (UTC) - Expand
Re: Work for hire changed in 1976 - zalem - Apr. 13th, 2008 07:23 pm (UTC) - Expand
Re: Work for hire changed in 1976 - maradydd - Apr. 13th, 2008 07:24 pm (UTC) - Expand
Re: Work for hire changed in 1976 - (Anonymous) - May. 14th, 2008 08:04 pm (UTC) - Expand
Apr. 12th, 2008 09:47 pm (UTC)
In case anyone's interested, here's a chart detailing what's public domain and isn't: http://www.copyright.cornell.edu/public_domain

(If those photos in your aunt's attic were ever published, then they are public domain, but if they weren't published, they're still under copyright. Weird, huh?)
Apr. 12th, 2008 09:50 pm (UTC)
I'm interested! Thanks for the link.

(And yeah, the published/unpublished split is indeed wacky, particularly with the added twist of "published with/without copyright notice" or "was the copyright renewed?" One of my favourite novels was published with notice in 1938, but the copyright was never renewed, so it's now in the public domain; I have been wanting to turn it into a graphic novel for the last eight years or so.)
(no subject) - lampbane - Apr. 12th, 2008 09:55 pm (UTC) - Expand
(no subject) - mouser - Apr. 12th, 2008 11:40 pm (UTC) - Expand
(no subject) - maradydd - Apr. 12th, 2008 11:45 pm (UTC) - Expand
(no subject) - ilcylic - Apr. 13th, 2008 01:22 am (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 03:36 am (UTC) - Expand
(no subject) - (Anonymous) - Apr. 14th, 2008 09:50 pm (UTC) - Expand
(no subject) - linxan_terrano - Apr. 13th, 2008 11:42 am (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 06:43 pm (UTC) - Expand
Apr. 12th, 2008 10:28 pm (UTC)
This "Mark Simons" sounds like a bit of a wacko anyway.. Check out the number of businesses all being run from the one residential address which appears in the whois records for one of his domains:
8137 Lake Crowell Circle (http://www.google.com/search?q=8137+Lake+Crowell+Circle).
Apr. 12th, 2008 10:50 pm (UTC)
Misconception 4 - Slander of title
Quite apart from everything else you can do to the fraudulent registrant, there is a separate cause of action you can maintain against them called "slander of title".
Apr. 12th, 2008 10:56 pm (UTC)
Re: Misconception 4 - Slander of title
Ooh, good to know! I should have known about slander of title before, given that it came up in the SCO suit, but hey, better late than never.

And given that slander of title is an important element of real estate law, that one's not likely to go away anytime soon.
Apr. 12th, 2008 11:27 pm (UTC)
Excellent post. This is the best clarification of this that I've seen all day, and I've seen the cries of "ZOMG DOOOM!!!" on just about every forum I've visited on the 'net since late last night.
Apr. 12th, 2008 11:50 pm (UTC)
Thanks! ursulav and kynn have good responses as well, as does this post on a yaoi gallery user's page.
(no subject) - tiamat_the_red - Apr. 13th, 2008 03:40 am (UTC) - Expand
Apr. 12th, 2008 11:29 pm (UTC)
Great post. Thanks for the most excellent writeup.
Apr. 12th, 2008 11:47 pm (UTC)
You're quite welcome!

BTW, I see that the Archive has joined forces with etree.com for archiving live performances by bands who are cool with that sort of thing. This is awesome news, and we passed it on to the lead singer of New Model Army at their last show -- they used to put gig recordings up on their website, but stopped due to bandwidth problems, so this will make life much easier for them.
(no subject) - paisleychick - Apr. 13th, 2008 01:16 am (UTC) - Expand
Apr. 12th, 2008 11:36 pm (UTC)
You are a goddess for this clear language explanation.
Apr. 12th, 2008 11:39 pm (UTC)
Aw, thanks!
Apr. 13th, 2008 12:26 am (UTC)
Thanks for clearing this up. Because the way it sounded to me at first was that you or I would have to pay to share our fan art, fan fiction, photos, etc on the net and would that violate the idea of freedom of speech.
Apr. 13th, 2008 12:46 am (UTC)
The thing that's so exceptionally aggravating about Simon's article is that he conflates orphaned works with requiring copyright registration. This is totally not the case; the Copyright Office has outright stated that any potential orphaned works legislation should give the same consideration to both registered and unregistered works. Automatic copyright isn't going away any time soon.
(no subject) - mcity - Apr. 15th, 2008 01:55 am (UTC) - Expand
Apr. 13th, 2008 12:33 am (UTC)
Great, great post, Meredith! Thanks :)
(Deleted comment)
Apr. 13th, 2008 12:55 am (UTC)
I don't think I understand your concern, because fair use ("fair dealing", in Canada and other places) is already a well-established part of federal copyright and trademark law. Title 17, U.S.C. section 107:

Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
This language was actually introduced into federal law as a result of the 1976 Copyright Act.

Furthermore, the two issues really appear to be completely orthogonal -- without language to explicitly remove the "fair use" clause from federal law, fair use holds, whether on an orphaned work or a non-orphaned work. I'd certainly recommend examining any proposed orphaned-works bill carefully with regard to its impact on fair use, but I do not believe that an orphaned-works bill is necessarily detrimental to fair use. Nor do I think the Copyright Office has any desire to destroy the fair use doctrine.

Edited at 2008-04-13 12:56 am (UTC)
(Deleted comment)
(no subject) - maradydd - Apr. 14th, 2008 02:36 am (UTC) - Expand
(no subject) - mcity - Apr. 15th, 2008 02:04 am (UTC) - Expand
(Deleted comment)
(no subject) - mcity - Apr. 15th, 2008 12:04 pm (UTC) - Expand
fair use in a medium of your choice - davefreer - Apr. 17th, 2008 06:17 pm (UTC) - Expand
Here's a good article - (Anonymous) - Apr. 17th, 2008 08:41 pm (UTC) - Expand
Fair Use is unchanged by Orphan Works Bill - gfiremark - Jun. 10th, 2008 05:04 am (UTC) - Expand
Apr. 13th, 2008 12:45 am (UTC)
Question: What does FUD stand for?
Apr. 13th, 2008 12:46 am (UTC)
Fear, Uncertainty and Doubt.
(no subject) - artsangel - Apr. 14th, 2008 12:12 am (UTC) - Expand
(no subject) - mrinitialman - Apr. 14th, 2008 03:40 am (UTC) - Expand
(no subject) - maradydd - Apr. 14th, 2008 03:55 am (UTC) - Expand
(no subject) - mrinitialman - Apr. 14th, 2008 04:10 am (UTC) - Expand
(no subject) - sucrelefey - May. 10th, 2008 10:01 pm (UTC) - Expand
(no subject) - mrinitialman - May. 11th, 2008 04:51 am (UTC) - Expand
(no subject) - sucrelefey - May. 11th, 2008 06:32 am (UTC) - Expand
Apr. 13th, 2008 12:53 am (UTC)
I'm sticking with my current theory that the nasty side effects of IP law as it stands today are so horrendous that the nasty side effects of not having any IP law at all would be an improvement on the overall situation.
Apr. 13th, 2008 10:12 pm (UTC)
My theory is that after a work is published commercially with the intent to make money, if it isn't republished in a similar manner within 10 years, it likely doesn't have a commercial value (i.e. produces revenue) and should pass into public domain.

I'm tired of stuff (books, movies, art, etc.) going out of print and unavailable, and if someone dares use it and happens to make money, then the copyright lawyers are unleashed on them by the copyright holder. If the copyright holder didn't think the IP was worth enough to bother making it available for sale, then essentially they abandoned it.

Oh, and if they make "re-imaginings" that have little resemblance to the original, the original instantly goes into public domain because the copyright holder has deemed it obsolete. This is the Battlestar Galactica corollary of my theory.
(no subject) - ilcylic - Apr. 13th, 2008 11:44 pm (UTC) - Expand
(no subject) - mcity - Apr. 15th, 2008 12:16 pm (UTC) - Expand
Apr. 13th, 2008 01:22 am (UTC)
Great post!
I'm not sure, but isn't one of Simon's points (and the point of many a blogger/message boarder out there in recent days) the potential that seems to be building for mass orphaning, for lack of a better term? There is so much hub-bub going on in the different art forums, but the gist seems to be that though everything you wrote is correct as of TODAY, that there is an active attempt through legal means to change the way orphan works are handled, and indeed what constitutes orphan works to begin with.
Apr. 13th, 2008 01:26 am (UTC)
But the point that both I and the Copyright Office are making is that it should not be possible for a work to be "orphaned" without the original holder's consent; if the original holder pops up and says "wait, that's mine," then the work is not orphaned, by default.

Right now, there is no legal definition of "orphaned works"; the point of any legislation about them would be to create such a definition and the law surrounding its application.
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