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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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Sep. 7th, 2008 12:20 am (UTC)
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(Anonymous)
Jan. 21st, 2009 01:35 am (UTC)
a bit more about the ability to sue for infringement
you mention in your post that "If your copyright is not registered, you may claim "actual damages and profits" -- i.e., the value of the work."
and add a link to further details. If you follow the link to the U.S. Copyright office information it actually states that you don't have the ability to sue *at all* unless you have a registered copyright. The claims that you can make are dependent on when you register your copyright in relation to the time you make suit.

So, apparently, no registration = no claim even for actual damages/profits.

http://www.copyright.gov/circs/circ1.html#cr

So this "automatic copyright" concept when you snap the shot is pretty pointless.
(Anonymous)
Sep. 2nd, 2009 05:04 pm (UTC)
Bill Bartmann
Hey good stuff...keep up the good work! :)
(Anonymous)
Dec. 16th, 2009 02:45 pm (UTC)
Still the sanest article I've read on the subject after two years
I happened to come across the Simon article by accident again, and guess what - the sheep people are still finding it and argue if they should take it to the streets - despite the fact that the whole legistlation has been shot down repeatedly by this point. Thanks a lot for the much needed warning to check the facts - if nothing else, this whole ordeal has been an excellent experience on mass hysteria.
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( 324 comments — Leave a comment )

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