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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)
Apr. 13th, 2008 08:12 am (UTC)
THANK YOU for this SANE explanation!
There has been so much overreaction around this issue.

Kevin Geiger
neo_sairys
Apr. 13th, 2008 08:35 am (UTC)
Thank you for the post. I still feel really uneasy about the entire bill and I don't trust it one bit. There's too many loopholes for me.

But at least it's one more aspect of the bill that I'm informed about.

Again, thank you!
maradydd
Apr. 13th, 2008 08:37 am (UTC)
I'd set any worrying aside until there's actually a bill drafted; as yet, there isn't one. (A previous version died in 2006 without ever being voted on; any new draft will almost certainly have to take the Copyright Office's recommendations into account, or suffer the same fate.)
(no subject) - neo_sairys - Apr. 13th, 2008 02:00 pm (UTC) - Expand
(no subject) - warnold - Apr. 13th, 2008 04:30 pm (UTC) - Expand
(no subject) - maradydd - Apr. 13th, 2008 06:31 pm (UTC) - Expand
mangamageblue
Apr. 13th, 2008 10:06 am (UTC)
Thank you very much for this post!

I can breathe now (heh)
(Anonymous)
Apr. 13th, 2008 10:22 am (UTC)
Hypothetical situation
A guy who works for Victoria's Secret one day stumbles upon a photograph on the sidewalk. It depicts an attractive woman sporting his company's products, and he feels it would be great in one of their ads/magazines/etc. So he goes to try and find the photographer. After looking damn near EVERYWHERE, he turns up nothing and decides to just go ahead and use it.

The photographer sees it on a billboard somewhere and flips the fuck out. Turns out it was a pic of his wife that fell out of his wallet a while ago and he had been looking for it ever since because he didn't want anyone to see it. So he calls and tells them to "burn the sign to the fucking ground!"

This law seems to propose that since the user used the thing commercially, that they would need to pay "reasonable compensation", i.e. what the two would have agreed on for payment for the image originally. Only problem? No way in hell that dude would have ever sold the image, ever ever ever ever. And the Victoria's Secret guy certainly wouldn't have payed the millions it would have taken for this guy to even CONSIDER selling the thing in the first place.

So what happens then? Did they cover that kind of thing anywhere?
neo_sairys
Apr. 13th, 2008 02:11 pm (UTC)
Re: Hypothetical situation
That's one of my concerns also. I feel bad, but the interview that I heard the law from dumbed it down to saying that the company can pretty much set the price for how much they thing is fair, meaning that photo that could've given him a good lump of cash he can only sue for 50 bucks, according to what VS believes is fair (using your example company)

I really hope this isn't the extreme that the bill can be taken to because if that's the case...man. we're soooo screwed,lol!

Re: Hypothetical situation - warnold - Apr. 13th, 2008 04:18 pm (UTC) - Expand
(Anonymous)
Apr. 13th, 2008 11:16 am (UTC)
Broken Link
Your link on the Berne Convention, http://www.law.cornell.edu/treaties/berne/overview.html, gives me 3404 Not FOund (2008/04/13 11:13 GMT). Try http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

heidi8
Apr. 13th, 2008 12:15 pm (UTC)
Hi - would you be interested in crossposting this - or posting a link to this post - on fandom_lawyers? And thank you so much for writing all this up! It's something terrific for people to point to.
maradydd
Apr. 13th, 2008 06:34 pm (UTC)
Well, my only concern there is that I'm not a lawyer, or even close to being one. Feel free to point to it there, but please advise people that I'm just a regular old public policy geek, and cannot give binding legal advice.
(no subject) - heidi8 - Apr. 16th, 2008 05:22 pm (UTC) - Expand
gwennafran
Apr. 13th, 2008 12:30 pm (UTC)
Thanks for the post. I was pretty amazed to see all the orphaned works panic journals on my DeviantArt friendlist as well, so you got a link from me about this also. ;)
(Anonymous)
Apr. 13th, 2008 12:51 pm (UTC)
DONT CONFUSE PEOPLE!
Your post refers to the old law and not the draft that is up for being put out this year! You are totally confusing the whole issue and leading people in a wrong "sit down and relax" behavior. The case is that the new Orphan Work Bill is coming out and we can only hope there have been changes to the completely horrifying first "draft" >> http://www.sellyourtvconceptnow.com/orphan.html

This interview is actually way more current then your writings about "Orphan Works "...

Don't sit down and relax people, listen to the interview and what Brad Holland has to say and be critical ! >> http://www.sellyourtvconceptnow.com/orphan.html <<
maradydd
Apr. 13th, 2008 06:06 pm (UTC)
Re: DONT CONFUSE PEOPLE!
There is no draft bill yet. No one has been able to identify who its authors supposedly are, and so people are panicking over nothing. Why freak out before there's even a bill to freak out over?

My post actually refers mainly to Marybeth Peters' statement before Congress on March 18th of this year, which, if you'd actually taken the time to read it, you would have grasped. But perhaps you're having too much fun running around shouting that the sky is falling.
sagesoren
Apr. 13th, 2008 02:04 pm (UTC)
Thank you for writing this up. People were freaking out unnecessarily. D:

Why did they think it was called the "Orphaned" works? xD
maradydd
Apr. 13th, 2008 06:35 pm (UTC)
People like to freak out. I think it's just a fundamental aspect of human nature.
(Anonymous)
Apr. 13th, 2008 02:46 pm (UTC)
Orphan Works
thanks for, shedding some light onto this issue
(Anonymous)
Apr. 13th, 2008 02:56 pm (UTC)
I had a feeling this issue wasn't as bad as it sounded...
Thank goodness!

Someone posted a link to this crazyness on a forum. I took it at face value but was still pretty dang sure it was a tempest in a tea pot. I couldn't come right out and say it was a "hoax" but i was pretty dang sure.

I did some internet searching but gave up (not my job). Later someone posted a link to THIS very informative article and dagnabbit I was right all along!

NEVER BELIEVE ANYTHING YOU READ ON THE INTERNET! I tell this to everyone. Family and friends who have no clue. They read it in an email, see it on a web site and never do any research. If you read something CRAZY it isn't automatically true until you can verify the FACTS. I also tell everyone to expecially not believe something that sounds OUTRAGEOUS if it hasn't hit the "mainstream" news. If you read on the internet that a comet smashed into and destroyed Kansas and there is no coverage on the TV... it probably didn't happen.
maradydd
Apr. 13th, 2008 07:12 pm (UTC)
Re: I had a feeling this issue wasn't as bad as it sounded...
Well, there are certain things on the Internet that are worth believing. If you see the text of a bill on thomas.loc.gov, you can be pretty confident that yes, it is a real bill, for instance. :)

I should really write up a post sometime on how to do research on the web.
(Anonymous)
Apr. 13th, 2008 03:13 pm (UTC)
Only Shallow..
Maybe you are a nerd.. but not a smart one. Your analysis of the 'Orphan Works' bill is incredibly shallow, utter rubbish.
caduceus
Apr. 13th, 2008 03:17 pm (UTC)
Wow! Thank you so much for this - the first waves of panicky posts are just starting to arrive on my f-list and I couldn't really believe it. Nothing better than a calm, well-researched assessment of the situation to prevent people from losing their heads...
Would you mind if I linked to this post in my LJ?
maradydd
Apr. 13th, 2008 06:36 pm (UTC)
Please feel free to link/repost (with attribution, thanks) wherever you like. :)
(Anonymous)
Apr. 13th, 2008 05:09 pm (UTC)
Wow, this is such a relief.

I've been hearing people freaking out all over deviantart about this, and I was starting to get worried (even though I didn't read Mike Thomas's article myself). I have an anxiety disorder so I freak out more about things than most people XD

But this makes me feel better! You've kept away a panic attack :)

-Savvy
maradydd
Apr. 13th, 2008 07:10 pm (UTC)
Glad to be of service. :)
(Anonymous)
Apr. 13th, 2008 05:19 pm (UTC)
A very informative post indeed, however, I don't like your condescending remarks and pretentious attitude. The fact that other people aren't as informed as you are, or are having trouble understanding the bill, doesn't give you the right to degrade them. If you really mean to inform and help others with this post, I suggest you have a little more respect for your audience.
maradydd
Apr. 13th, 2008 06:38 pm (UTC)
I have plenty of respect for my audience. Mark Simon, on the other hand, is trying to whip people into a frenzy over a supposed "bill" which doesn't actually exist yet. I have no respect whatsoever for that kind of behaviour, and I think you'll see my ire is leveled at him.
(no subject) - (Anonymous) - Apr. 13th, 2008 06:46 pm (UTC) - Expand
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( 324 comments — Leave a comment )

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