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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.


( 324 comments — Leave a comment )
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Apr. 13th, 2008 01:25 am (UTC)
"Six months after the last version of an Orphan Works bill died in a Congressional committee, a new Orphan Works bill is being drafted for consideration in the 2008 legislative session."

>>This "Mark Simons" sounds like a bit of a wacko anyway..

How about Brad Holland? He sounds a bit worried about this, and he's a bit more difficult to dismiss. Audio interview with him here:

(And yes, the page is slathered with "OMG IT MEANS THEY CAN TAKE YOUR HOUSE TOO" panic-button, bright red text. Nevertheless... Brad Holland.)
Apr. 13th, 2008 01:31 am (UTC)
I saw that post. It lists no putative author(s) for the bill and no source for its claim. Until I see either of the above, I can't take it seriously.
Great point - (Anonymous) - Apr. 15th, 2008 06:08 pm (UTC) - Expand
Re: Great point - (Anonymous) - Apr. 15th, 2008 11:36 pm (UTC) - Expand
Apr. 13th, 2008 01:52 am (UTC)
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.

That's actually true, although completely unrelated. The statute of limitations on copyright is 3 years in the US, beginning from the time when infringement ended. That means if somebody infringes your copyright, and then they stop, and you don't do anything about it for three years after that, you can't sue them for that particular infringement any more.

There's a statute of limitations on most crimes and civil infractions; somebody can object to the general principle if they really want to, but it really has nothing to do with copyright.
Apr. 13th, 2008 02:03 am (UTC)
Fair enough -- though I think the scenarios most people are worried about here are the ones where an infringer is perpetually infringing, e.g. providing a piece of art in a clip-art catalogue, selling prints of it, hosting it on their site without permission, &c.
(no subject) - rwpikul - Apr. 13th, 2008 03:53 am (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 04:03 am (UTC) - Expand
(no subject) - warnold - Apr. 13th, 2008 04:05 pm (UTC) - Expand
(no subject) - boundfate - Apr. 14th, 2008 03:32 pm (UTC) - Expand
Apr. 13th, 2008 03:17 am (UTC)
Thank you for this. Your post is intelligent, friendly, informative, and very well-written.

It also makes it so I don't have to tell people that their wanking about their copyrights is getting on my nerves. I just copy-paste the address for this post and let you tell them

Thank you again!

Apr. 13th, 2008 04:32 am (UTC)
You're very welcome! And, yes, please feel free to link/repost-with-attribution.
Apr. 13th, 2008 03:54 am (UTC)
it's good to know someone has an idea about what's going on.
Feb. 18th, 2009 08:02 pm (UTC)
i am a little confused ughh
Apr. 13th, 2008 04:12 am (UTC)
I have been looking into copyright laws for the last year. I am creative in many forms including art, voices, youtube videos, stories, sculptures, crochet and nameless other creations...

I have been struggling to understand the fine line of fair use. I've just read that NET thing that you had a link for and I find that quite a relief, but then also troubling...

There are countless youtubers (probably mostly kids) who use screen recording devices to copy video from other user's channels and even DVD's. They then mix it up on their own videos. They have not added anything to the copyrighted works except other copyrighted works and some musical piece. They call it a form of creative expression as an excuse to upload it to youtube.

Are they allowed to do that? If so, then it inhibits my creative expression, so I would say it is not allowed. What do you think about that situation?
Apr. 13th, 2008 04:24 am (UTC)
I personally like the remix/sampling culture. Back in college, I used to make anime music videos; these days I like going to mashup nights like Bootie.

Do these sorts of uses qualify under fair use? According to the current definition of "fair use" in federal law (cited upstream), probably not. Do I enjoy them anyway? Yep. The law is the law, and as far as I am aware, if Cypress Hill (or, more likely, their label) wanted to sue the mashup artists who sample "Jump Around" (one of the most widely used sources of bass line in mashups), or the DNA Lounge for playing these mashups, they could do it, and they'd probably win. I think it would be a real detriment to modern musical culture if suing mashup artists became commonplace, but, again, the law is the law.

I don't really understand your argument that someone remixing your YouTube video "inhibits [your] creative expression", though. The original still exists, after all. Would you mind expounding on that a little more?

I'm coming from this as a published author whose stories have been remixed, by the way -- people have incorporated material from stuff I've written into a timeline of the Cthulhu Mythos and into roleplaying game materials, and when I've run across these sorts of uses, I've felt extremely complimented that someone found my work inspiring enough to base something else on. I know that my opinion is not always shared, though.

Edited at 2008-04-13 04:39 am (UTC)
(no subject) - (Anonymous) - Apr. 13th, 2008 06:32 am (UTC) - Expand
(no subject) - mattbayne - Apr. 13th, 2008 06:00 pm (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 07:02 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 13th, 2008 08:38 pm (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 08:45 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 13th, 2008 09:30 pm (UTC) - Expand
(no subject) - mcity - Apr. 15th, 2008 02:07 am (UTC) - Expand
(no subject) - green_roc - Apr. 15th, 2008 11:52 pm (UTC) - Expand
Apr. 13th, 2008 04:13 am (UTC)
Thank you for posting this! After reading all of the panic about this Orphan Works thing on DeviantArt.com, I was actually beginning to worry about it, but this post really helped me to understand it better. It's always good to get the specifics and read the original source material before making decisions about something....that's why I don't judge movies or books based on other people's opinions, but instead watch/read them for myself. =)

Anyway, thank you--hehe, and that little loophole at the end is neat to know!

~Threshie <3

Apr. 13th, 2008 04:26 am (UTC)
You're very welcome! If you try out the loophole, please let me know how the Copyright Office responds -- I'm not sure it's been tried, but I think (from a non-lawyer's perspective, anyway) that it should work.
(Deleted comment)
Apr. 13th, 2008 04:27 am (UTC)
No problem. My tolerance for unsubstantiated FUD is pretty low as well.
(no subject) - mcity - Apr. 15th, 2008 02:09 am (UTC) - Expand
Apr. 13th, 2008 04:24 am (UTC)
Thanks for the clarifications on this. I hope you don't mind me linking you so that this information spreads more.
Apr. 13th, 2008 04:25 am (UTC)
You're quite welcome, and please feel free to link or repost (with attribution, please) far and wide. :)
Apr. 13th, 2008 04:24 am (UTC)
A Big Thanks!
I really want to thank you so much for posting this, I've been going out of my mind with all the Orphan Works scare that is sweeping the deviantart nation like the bubonic plague. I'm also glad that you back up your information, which most people have not done at all! My first encounter with this bill was last night and it was with a audio file and I won't lie everything that was said on there was pretty scary and apocalyptic, but again there was no info to back up what the person was saying.

I'm still going to be protecting my artwork like crazy, but my mind is way more at ease than it was five minutes ago before I read this, so once again thank you so much! <3
Apr. 13th, 2008 04:30 am (UTC)
Re: A Big Thanks!
You're most welcome. The most effective weapon against rumour is research and fact, after all. :)

I think you're well within reason to protect your artwork with watermarks, copyright statements posted on the art itself, registration via the Copyright Office, or whatever best suits your needs and resources -- it's just sensible for any artist, no matter what their medium.
Re: A Big Thanks! - (Anonymous) - Apr. 23rd, 2008 10:38 pm (UTC) - Expand
Apr. 13th, 2008 04:25 am (UTC)
Thank you milady on setting the record strait.
Apr. 13th, 2008 04:31 am (UTC)
Glad to be of service. :)
(no subject) - dren_treni - Apr. 15th, 2008 04:39 am (UTC) - Expand
Apr. 13th, 2008 04:32 am (UTC)
Aha wow. This does clear up a lot of stuff for me.
I hadn't done any research, like many people.
Which I shouldn't of done. And I had jumped to conclusions.

Personally I don't think they should even touch the copyright law right now >_> But hey. *Shrug* I'm not sure what they would be changing.
Apr. 13th, 2008 04:36 am (UTC)
Kind of a big deal...
Yeah, I just spent an hour and a half watching the house subcommittee meeting from March, and as someone who is not an artist and who would have very little stake in all of this, it is a big deal. It's not that what they are proposing is a shift in copyright laws, but your right to sue for whateverthefuckyoucanget should you have your work stolen. Yes, people can steal now, but the threat of being sued prevents a lot of random theft, I am sure. Artists have a right to choose where and how their images are reproduced - with the threat of litigation removed, a lot of that choice will be taken away when unsavory types who claim they have done "reasonable" blah blah blah to locate the copyright holder figure out that they can print on whatever, whenever and really just have to pay a commission should the owner of the work come forward.
Apr. 13th, 2008 04:38 am (UTC)
Re: Kind of a big deal...
But the threat of litigation is not being removed at all. See points 2, 3 and 5 above -- not to mention the fact that there is no bill on the House or Senate floor.
Re: Kind of a big deal... - (Anonymous) - Apr. 18th, 2008 03:56 pm (UTC) - Expand
Re: Kind of a big deal... - (Anonymous) - Apr. 18th, 2008 03:58 pm (UTC) - Expand
Re: Kind of a big deal... - (Anonymous) - Apr. 14th, 2008 10:18 am (UTC) - Expand
Apr. 13th, 2008 05:47 am (UTC)
This is exactly what I've been posting on forum topics that brought up this subject, time and time again. Now I have a journal I can link people to. What's funny is that I've been referencing people to copyright.gov too...

Well, good job. :)
Apr. 13th, 2008 06:47 am (UTC)
Re: Exactly.
Indeed, nothing beats going to the source to correct misinformation. :)

What's still blowing my mind is the sheer number of people who seem to think that a statement before Congress is the same thing as a bill...
Apr. 13th, 2008 06:35 am (UTC)
Was directed here through some friends' journals.

Thank you for posting this as it will be a good breakdown to point others to.
Apr. 13th, 2008 06:46 am (UTC)
You're very welcome! Feel free to link away.
Apr. 13th, 2008 06:41 am (UTC)
You Bloody Rock.
Thank you for saying what I've been saying in SO MUCH better words. You are a brilliant man, and may whatever higher power there may or may not be smile down at you for not being among the crazed hysteria that grips the average person with so much malice.
Apr. 13th, 2008 06:45 am (UTC)
Re: You Bloody Rock.
Thanks! (Actually, I'm a woman, but the icon doesn't make it terribly obvious.)
Re: You Bloody Rock. - (Anonymous) - Apr. 13th, 2008 06:54 am (UTC) - Expand
Re: You Bloody Rock. - maradydd - Apr. 13th, 2008 07:00 am (UTC) - Expand
Re: You Bloody Rock. - (Anonymous) - Apr. 13th, 2008 07:04 am (UTC) - Expand
Re: You Bloody Rock. - maradydd - Apr. 13th, 2008 07:18 am (UTC) - Expand
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