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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!"Collapse )

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

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

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

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

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

---

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.

Comments

( 324 comments — Leave a comment )
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(Anonymous)
May. 8th, 2008 01:09 pm (UTC)
Question
A real-world scenario and a question:

- you create a kick-butt photo and place it on your website. On that photo you clearly have a copyright notice line across the bottom and a honking watermark in the middle.

- somebody grabs the photo. They crop the copyright line and because they are talented with the clone stamp tool, successfully remove the watermark.

- they post the picture somewhere.

- a third party comes along, sees the photo, thinks it's fantastic, and wants to publish it. Unfortunately, no ownership info is clearly defined.

- pursuant to the orphan legislation, (and using the exact language in the bill), they:

quote: "...performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but (ii) was unable to locate the owner..."

- being unable to locate the owner, they publish the image.

Yes or no - in this scenario your picture could potentially meet the criteria of an "orphaned" photo?

tinker_jet
May. 11th, 2008 10:45 pm (UTC)
Wow. Can't believe I fell for the dreck. o.O;; Mind you, I wasn't going to do anything about it. I'm Canadian but I was worried about my American friends.

Sheesh.

Thank you dearly for setting the record straight though. You saved me the worry. ^__^
(Anonymous)
May. 13th, 2008 06:07 am (UTC)
panic about orphan works?
thanks for writing and posting this. it's an interesting article that reveals the complexity of the laws governing every inch of our lives. one thing i wonder about is: who could possibly be panicking over orphan work/copyright reform? these laws protect only the huge corporations like disney; they don't protect ordinary persons who merely want access to information. also, noone is his right mind could possibly believe the the fedgov would do anything to protect our freedoms. the 'rightsholders' are quite safe.
(Anonymous)
May. 13th, 2008 04:00 pm (UTC)
Just your opinion of support and hardly "setting the record straight"
Having stated what you say are facts while only actually giving your own opinions since you admitted have read nothing but the supporters and writers of the bills texts on the bills means nothing. Your article is a simply a support of the bill, laced with demeaning language to those opposed to the bill, who have actual stakes in whether the bill passes or not, unlike you who have none. Your are not an artist or a copyright lawyer so your view of “everything is fine” is only true since you don’t have your livelihood at stake.
You label the opposition as liars and discount their views as hysterics. This is as ridiculous as those of us opposed to the bills labeling supporters as lazy governmental doorsteps or sheep, which by the way, I am not saying. I think you are just a supporter of the bills but that DOES NOT MAKE YOU MORE INFORMED. Do you honestly think that Mark Simon didn’t do any research? That is foolish since he writes for a major publication and you, what, have a blog? Remember, some of what he was using was the statement that the 2008 bills would be very much like the 2006 bills (which weren’t voted on “because they were found to be unfair to the copyright holders” and not, as you allude to, because session ended. That was not the case and it is just another piece of misinformation you put in your support article. You think mark Simon has nothing a stake if he lies? You just chose to ignore the loopholes in the wording of the current bills (which unlike your first point do exist.) Those who have thanked you for “setting the record straight” are just people who WANT to be lulled in to inaction because the are to apathetic to do anything. It is far easier to support what congress puts forward than to fight to oppose it.
You constantly use Marybeth Peters article and make it look like you are talking about the actual bills, they are two entirely different things. She was only making suggestions as to what the bill writers might do. So you didn’t argue anything on the actual bills. I understand that when you wrote this you said that “no such bill has surfaced yet” which only means that Mark Simon and Brad Holand (one of the most highly awarded illustrators alive today) had more info than you. you consistently use statements of argument like “this isn’t likely to be the case” and “there is nothing on the table that suggests that” stating that you have no idea of what the actual bills contain when you wrote your support opinion.
There are many points that an actual art professional should be concerned with concerning how these current bills are written:

First, the concept of this "diligent search." This very term means nothing. Why? A "DILIGENT SEARCH" FOR IMAGERY ON THE INTERNET CAN NOT BE DONE AT THIS TIME. The only way you can currently search for images online is by using WORD searches. Change the words connected to the image and you erase the path to the image once it is reposted under with the altered text, this isn't hard to understand nor is it difficult to do, it is simple. There is NO pixel recognition system currently out there that can make a search for art possible at this time. Even the best face recognition software used by the government only measures the distance between the eyes, and the sizes of certain features. And it only works with FACIAL STRUCTURES and only from front view(and in a few cases side view.) So the idea that a system will be developed to VISUALLY recognize all the different things that can exist in an image is ridiculous. While this technology has been theorized and may even be at some EARLY stage of development, it will be some time before anything approaching this kind of technology is made available, let alone to the internet public. And so, any argument that a "diligent search," documented or otherwise, is a deterrent for the infringer can only be coming from a technologically ignorant person.

I have to break the rest into a second post. Sorry for the wordiness but I feel it is necessary.
(Anonymous)
May. 13th, 2008 04:01 pm (UTC)
Continued from above:

Well, what about these registries so we can tell people that our work isn't orphaned? WHAT REGISTRIES, THEY DON'T EXIST. They have only been loosely hinted at so far, they are only present in one bill currently at that, and they would take time to establish and most likely be run for profit by private sector with registration fees that have not even been discussed yet (current registration for works of visual art is $45 through the government.) Even then, it is too late. Why? Because the work is already out, on the internet, re-titled, cropped, reposted, and for all intensive purposes, lost. and since it is digital, it has been proliferated for 10 years now. There are billions of these images out there. Think that kind of damage can be undone within any reasonable timeframe if ever? And again, don't fall back on the silly "diligent search" for the author since I have already stated how a "diligent search" for images can't be done at this time if the words connected to the image are changed. Oh, and even if these registries are created, and users are forced to log on and search for authors. how many works do you think will still be "orphaned" because the author didn't register them because they didn't even know their piece was online to begin with and they only register works that they use online or that are part of their portfolio. I have seen countless images, mine and others, that pop up online without the author even knowing they have been put online. Fans do this all the time. Scan in things from books, magazines, art exhibits (when no one is watching) etc. My students have done this to me. They meant no harm by it but it illustrates my point. THE DAMAGE IS DONE and building a dam (registries) won't undo the flood damage that has already occurred. It's like putting on football pads after the game.
Next, this idea that people are infringing now and that this bill changes nothing, or even makes it better. I have stated this before, The wording of what an artist can receive in the court case (unless they pay these registries) is be changed from "actual damages and profits" to "reasonable compensation." Do these look like different words to you. It means more limitations will be placed on what the artist can get as court payment. Do you think that just might have an effect on whether a possible infringer may take the risk to use another's work. This is simple logic again: Reduce the risks, increase the chances someone will try it. Why do you think there are so few base jumpers in the world. A lot of risks perhaps that have to be weighed. This is the very heart of these bill since their ENTIRE PURPOSE was to reduce the risks that would stop people from using this so-called "Orphaned" work. It was the very reason the bills were written. And, it does not help artist by "creates a very specific provision for payment AND makes that payment mandatory" since PAYMENT IS ALREADY MANDATORY. What is different is that the amount of payment possible is being reduced in order to "encourage usage" and "reduce risk." Oh wait, I forgot, this bill only applies to "well meaning users" that have done and documented this "diligent search." No offense, but this is nonsense and I have written why in previous posts.

I believe that these bills are NOT SOME EVIL PLOT TO STEAL OUR WORK. I expect they have well meaning people behind them (at least I sure hope so) but the way the bills are drawn up currently opens far too many loopholes. The amount of debate on this at this very moment proves my point easily. They are poorly written; they do not place limits on who can be covered under these bills or for what purposes, and they are vague in many areas that should be clear before this goes to vote. Waiting until it becomes law drastically reduces what we can do.
(Anonymous)
May. 15th, 2008 09:08 pm (UTC)
one more thought
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00178

I think perhaps that, while Mark Simon's article was easily one of the poorest written articles I've ever read (and as such it is easy to dismiss the content of his message), it is these kinds of bills that companies use to exploit artists. And, as such, the bill is worth scrutinizing closely and, if it seems potentially harmful (even if it is something that could be used in a way that isn't intended by the bill itself) possibly speaking out against.

(Anonymous)
May. 16th, 2008 02:30 pm (UTC)
fair use, plus a point about commissioned works
I may be adding something that has already been posted, because I just discovered this site and don't know how to operate it properly.

Here's a critical point about fair use: It's not a right; it's a legal DEFENSE. You can point out to someone that your use may be fair, but, that's just your opinion. To assert your right with legal effect, you must be in court. In order to be in court, you must be under suit for copyright infringement. You could claim pauperis per, meaning that you can't afford an attorney and want to represent yourself, but this is not a good idea. If you are being sued by a big company, they won't back down easily. Legal costs will run to tens of thousands of dollars. Hundreds of thousands, in some cases. So ya gotta ask yerself, Do ya feel lucky?

COMMISSIONED WORKS: Absent a written contract, work you do for someone else in your own studio will be considered a commissioned work, and you will own the copyright, the same as if you have a contract for a commissioned work. But BIG CAUTION. The ninth-circuit court of appeals has come up with a spoiler: The Doctrine of Implied Non-Exclusive License. This means that if you and the commissioning party intended to have your work used commercially by the commissioning party, that party has the right to use your work without paying you the agreed amount(at least under copyright law). Ironically, you will still have a valid copyright and can resell the work to others. I know this sounds crazy. It also seems unethical to sell to someone else a work you created specifically for a particular client. However, that's the law, at least within the jurisdiction of the ninth circuit. You can trust me on this because I was the plaintiff in the case that established this precedent, back in the 1980s. Also the court does not take into consideration the cost of creating the work. If you have a creative fee of, say, $250 dollars, and a 'manufacturing' cost of $1,000 (such as a foundry fee for casting bronze), and if the client pays $700 dollars in progress payments, The court can add the concept of "equitable estopple." This means that the client, having paid the greater part of the agreed price has an overriding equity in your work. The result is that, not only do you not get your creative fee or profit, but you will be out of pocket $300 (in the example I'm using), plus attorney's fees and court costs
(Anonymous)
May. 22nd, 2008 08:26 pm (UTC)
orphaned works
The biggest thing that we as artists fear is the fact that people WON'T take the time to find the owner. The scenarios you gave were great examples, but they are still a violation of someone's copyright. They would be damaged under this proposition. You might not have stuck the metaphorical knife into them (they're probably dead), so you kill the whole family!! This whole proposition doesn't make any since to me. "If it ain't broke don't fix it!"
(Anonymous)
May. 25th, 2008 11:46 am (UTC)
Donations to libraries/museums
You write:

"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."

This is not always true. My wife and I own the rights to the photos from our wedding because we paid the photographer for them and she gave the rights to us.

"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."

This is also not true. You can donate anything you want to a library or museum. They just can not always PUBLISH those photos without permission.

Daryl
Librarian, Editor & Contracts Manager
(Anonymous)
May. 28th, 2008 06:07 pm (UTC)
I wish you were in the real world.
Meredith,

You do disservices to all that want important information on this future law. You hold yourself out to be the authority on the issues, yet you then say I am not an attorney, so don’t count on anything I say.

I think you are the FUD whom is seriously confused.

Before you discount me read the letter from an attorney below…whom for the record states the real issues.

Next this bill if enacted into law most likely will be unconstitutional and will be challenged by a copyright owner who has the financial resources to see it to end.

To all that read this, let me tell you I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD. US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.

My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”

So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.

As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.

How many of you readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.

Propet USA v. Lloyd Shugart WD WA. Federal Court

Lloyd Shugart

http://techdirt.com/articles/20080425/124144950.shtml#comments


Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm



RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. Our
law firm focuses extensively on the creative arts industries and
represents both manufacturers and individuals through counseling,
Registration and litigation. After a thorough review of the proposed
Bill, the following comments are offered from a legal professional
who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976



Please know that our firm is willing to answer any questions that you
may have or provide testimony on this matter at any time. We are a
law firm that handles these issues on a daily basis. Our
representation is diverse including famous brands, famous artists,
manufacturers and those waiting to be discovered. I personally hold
a Juris Doctor and a Master of Laws in Intellectual Property. We
live copyright law on a daily basis and would see first hand what
consequences this Bill would have on both sides of this issue. Thank
you for your consideration in this matter.

Sincerely,
Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.

(reply to this comment) (link to this comment)
(Anonymous)
May. 28th, 2008 06:12 pm (UTC)
Re: I wish you were in the real world.
http://techdirt.com/articles/20080425/124144950.shtml#comments

Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm
As a person who has earned a living from licensing my artwork for products I and the majority of artists and designers feel this bill has overlooked our industry . This will give manufactures a license to steal out artwork easy. We are NOT paranoid artists . Our concerns are best described in this letter . This is letter sent to a senator from an IP attorney I have been given permission to post .

Sent Via Facsimile

RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. Our
law firm focuses extensively on the creative arts industries and
represents both manufacturers and individuals through counseling,
Registration and litigation. After a thorough review of the proposed
Bill, the following comments are offered from a legal professional
who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976

Artists relied on the provisions of the Copyright Act of 1976 that
did not require them to place the copyright notice on their work in
order for them to own their copyright. The additional provisions of
this bill do not change the language of §401(a). The Act clearly
states that "copyright…subsists from its creation." The Bill does
not state that this language will be changed to "copyright…subsists
from its creation provided that you register, use the correct search
terms, and can pay for it." This Bill puts a large requirement on
individuals to register and use large amounts of financial resources
to protect an artistic work.

Public Notice and Private Databases

Copyright registration continues to be the most accessible
intellectual property protection available to the public. The fees
are minimal and the forms understandable so that an average person
could complete the task with relative ease. The proposed Bill
changes that premise. The use of private databases creates two very
significant problems:

1) Private Databases force individuals to become intimately
familiar with search terms and remain current on any case law that
would direct what constitutes a "qualifying search." The bill
requires the use of search terms that require the average public to
become attorneys or highly skilled researchers to know what terms to
use so that a work of art can be located.

2) The cost for registration for both the US Copyright Office
and any private database(s) could be substantial to most artists who
create multiple works in a short time frame. As well, if an artist
does not feel comfortable filing such documentation due to the
burdensome requirements, he or she will need to hire an attorney
which will prevent the vast majority of artists from registering
copyrights.

The use of search terms and registration with the US Copyright Office
and private databases takes some of our country's greatest treasures
and places them in the hands of private individuals. The Federal
Government is privatizing part of a constitutional function (the
protection of intellectual property). The burden placed on the
individual artist is a far greater crime under this Bill than the
potential that a work of art will not be able to be used because the
owner is not found. The passage of this Bill would eventually mean
there will only be works of the past. It will be almost impossible
for the individual artist to survive and protect his or her work
while making a living as an artist.

Re: I wish you were in the real world. - (Anonymous) - May. 28th, 2008 06:14 pm (UTC) - Expand
Re: I wish you were in the real world. - (Anonymous) - May. 28th, 2008 06:15 pm (UTC) - Expand
It was a lonely search. by Lloyd Shugart - (Anonymous) - Jun. 3rd, 2008 06:07 pm (UTC) - Expand
(Anonymous)
Jun. 3rd, 2008 06:08 pm (UTC)
It was a lonely search. by Lloyd Shugart
It was a lonely search. by Lloyd Shugart on Jun 3rd, 2008 @ 10:56am

http://www.jpost.com/servlet/Satellite?cid=1202742156853&pagename=JPost%2FJPArticle%2FShowFull

According to Marilyn Henry, author of Confronting the Perpetrators: A History of the Claims Conference, the process of reclaiming looted art has always been one of the most prickly of all Holocaust restitution issues.

"Countless Nazi victims spent decades trying to find artworks that once belonged to their families. It was a lonely search. The burden was on the victim to find what had been taken, to prove it belonged to him and to convince whoever had it to give it back," she says from her home in New York.

"Imagine looking for a needle in a haystack, finding the needle, and being told by the haystack owner that you had to prove you owned the needle before the war, and then convince him that he should return the needle to you."

(reply to this comment) (link to this comment)
(Anonymous)
Jun. 18th, 2008 12:50 pm (UTC)
Orphan copyright legislation
On April 24th of 2008 the 110th CONGRESS 2D SESSION H.R. 5889 was introduced by Reps. Berman, Smith, Conyers & Coble, "To provide a limitation on judicial remedies in copyright infringement cases involving orphan works."

This bill was referred to the House Judicial Committee.

In May of 2008 the bill (now S. 2913) was in the Senate Judicial Committee, chaired by Patrick Leahy.

This bill does exist
(Anonymous)
Jul. 6th, 2008 04:00 am (UTC)
Hey everybody
How is you?
(Anonymous)
Jul. 29th, 2008 01:42 pm (UTC)
Hi I'm new here
I've recently joined and wanted to introduce myself :)
(Anonymous)
Jul. 31st, 2008 04:57 am (UTC)
Hi I'm new here
I've recently joined and wanted to introduce myself :)
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