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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 05:35 pm (UTC)
If you want copywrite protection register your work
Legally your work is copywrited from the moment you finish it but if someone else steals your work and registers it you have to go to court and have strong proof that you created it. This will cost you lots of cash.
I am a songwriter and I have run into this and so have many artists I know.
The government wants your money.
I save money by bundling all the songs I have written for a year and copy write them. I will register a song individually if I think it is extra special.
This is my 2 bucks. Good article.
Apr. 13th, 2008 06:49 pm (UTC)
Re: If you want copywrite protection register your work
Registering your copyright is certainly always a good protective measure. I personally haven't needed to do it myself (the couple or three copyrights I have registered were done on my behalf by my publishers), but for independent artists/musicians it's smart to take care of it.
(Deleted comment)
Apr. 13th, 2008 07:10 pm (UTC)
No problem. I'm always glad when people have a chance to counter fear with facts. :)
Apr. 13th, 2008 06:29 pm (UTC)
On misconception number 4
If someone copyrights your work as their own, you get to sue them. All you have to do is prove it's yours and not theirs.

Trademarks and patents are different, more complicated, but people get confused because it's all the same field of law.

Apr. 13th, 2008 07:09 pm (UTC)
Re: On misconception number 4
Not only do you get to sue them, there's a statutory fine of up to $2500. The government doesn't like being lied to. :)

And, yes, trademark and patent law are pretty damn weird compared to copyright law (which is straightforward by comparison!). Most of the confusion I see on the 'net about copyright law comes from people conflating copyright with trademark or patent (e.g., believing that one can "copyright" a character).
Apr. 13th, 2008 06:44 pm (UTC)
Many, many thanks for this.
Apr. 13th, 2008 07:31 pm (UTC)
Thank you for posting this. The hilarious thing is they've been trying to pass this for a while now. It's nothing new. It never gets passed. Why they're freaking out about this now is anyone's guess. There isn't even a current OW proposal out at the moment. And it's not as bad as it seems. Most photographers aren't fond of it, but this guy makes it out to be the end of the world or something.
Apr. 13th, 2008 07:49 pm (UTC)
Bravo, well put.
Apr. 13th, 2008 07:54 pm (UTC)
Thanks for being a well-assembled response to the hysteria that seems to be flying around all of a sudden. It took me all of two minutes to ask where the HR number of this supposed legislation was, at which point a few more minutes of research turned up Marybeth Peters (who must be the topical event that is triggering the current hysteria) and everything else fell into place (that is, apart.) You'd think people would develop better bullshit detectors on the Internet one of these days.
Apr. 13th, 2008 08:19 pm (UTC)
Off the wagon.
At first I didn't believe the posts then I got so many people tripping over themselves about this I started to think it was credible till I couldn't find anything official other then blog entries on it. Should have followed my instincts. Nice clarification.
Apr. 13th, 2008 08:23 pm (UTC)
Haha. What a douche.
Apr. 13th, 2008 08:32 pm (UTC)
About your article
You do argue a good point. If a artist does actually die, it does make sense that you should be able to use it if If you can't contact the owner of it at that time.

Although, I'm still a bit wary about others using your work without consent in this day and age. Internet is dangerous and posting YOUR PERSONAL ARTWORK shouldn't be used against you.

But thanks for your article about this. It doesn't seem so bad afterall.
Apr. 13th, 2008 09:56 pm (UTC)
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.

Unless the law has changed drastically while I wasn't looking, this isn't true. You are entirely free to donate the photos, and the library is entirely free to accept them and give people access to them. What the library can't do is say, put together a book including the photographs and publish it.

Now, your local history collection may choose not to accept items with such split rights, but that would be unusual, since it is a very typical situation for any research library. They regularly accept collections of letters, for example, where the original writer still holds copyright to the *content*, but the person donating holds rights to the physical object.
Apr. 15th, 2008 03:42 am (UTC)
I believe you're correct. I am under the distinct impression that archives are permitted to acquire copyrighted material under the same provisions that allow libraries to purchase and circulate books.
Apr. 13th, 2008 10:18 pm (UTC)
I think this will violate illustrators copyrights. It opens a loophole in the legal system for someone to use your work. Let's say if I created an illustration of some 'chick' and named it 'The Intervened Beauty', an illustration which is copyrighted upon creation and place it on the internet in some gallery with a proper (C) notice, someone might take that image, repost it with the cut out (C) notice for his 'personal use in mind', yet someone else might find this illustration, make a 'diligent search' for the copyright holder by typing 'pretty princess' in the search engines and perhaps browsing picscout to see if the image is copyrighted. With results coming in empty, unable to find the copyright owner, this will make the illustration an orphan to be used freely for commercial purposes.

Picscout has a 99% accuracy of finding match of the image, in it's registry database. What happens if you are the 1% (that's 10000 of a million)? Or if you don't have the cash to register every single photo, illustration, you ever created?

Currently there a millions of images on the net without a (C) notice attached to them.. Images that we don't use for commercial purposes because we presume they belong to someone with proper copyright. This 'Orphan Bill' will make all of these illustrations, photos, orphans to be used as pleased. Nonsense!!

Registries stand to make a killing on this.. I can just picture Getty Images and Corbis (Bill Gates) being involved in this.. Large corporations in the US seem to purchase laws to their liking..

Dear Meredith,

No offence, but if you'd be a dedicated or a professional illustrator you would have a much more profound understanding of this bill and it's consequences.
Apr. 13th, 2008 10:32 pm (UTC)
With results coming in empty, unable to find the copyright owner, this will make the illustration an orphan to be used freely for commercial purposes.

Something you appear to be misunderstanding here is that "orphaned-ness" is not a permanent state. As soon as the original creator comes forward, the work is no longer an orphan. It's not like setting something on fire, or eating it -- it can be undone.

Furthermore, nothing in any previous orphaned works legislation has proposed requiring copyright notices to be attached to works. The Copyright Office doesn't recommend it. I don't think it will appear in any future proposed legislation. (I'm pretty sure it would conflict with the Berne Convention on Copyright). Your statement about "this bill will make all of these illustrations, photos, orphans to be used as pleased" is simply flat-out wrong, both for that reason and because currently there is no bill.

For what it's worth, orphaned works policy applies to written works as well as visual artwork. No, I'm not an illustrator, but I was a professional science fiction writer for a couple of years.
(no subject) - (Anonymous) - Apr. 14th, 2008 02:02 am (UTC) - Expand
(no subject) - maradydd - Apr. 14th, 2008 02:22 am (UTC) - Expand
(Deleted comment)
(no subject) - (Anonymous) - Apr. 14th, 2008 02:48 pm (UTC) - Expand
*boogle* back - (Anonymous) - May. 3rd, 2008 04:55 am (UTC) - Expand
(no subject) - mightyjip - May. 9th, 2008 11:19 pm (UTC) - Expand
Apr. 13th, 2008 10:20 pm (UTC)
I also think this is somewhat important.. I can't picture anyone dragging someone to court just to receive $200 in damages over “innocent infringement”, and there will be a lot of “innocent infringements” after a "diligent, good faith search"!

"Some who oppose orphan works legislation have also objected to the removal of statutory damages, which are available under Title 17 in certain instances. A few have even asserted that statutory damages are an entitlement under the law that cannot be rescinded. We disagree. Statutory damages are an alternative means by which a copyright owner may recover against an infringer in lieu of proving actual damages and lost profits. However, they are only available if the owner has registered the work prior to the infringement or within three months of publication. (While it is possible that a registered work could be an orphan work within the proposed legislative framework, we think this is unlikely to be a common situation, not because the registration is guaranteed to be found, but because an owner who has taken steps to register his work has likely taken other steps to make himself available outside the registration system.) Statutory damages are not an absolute entitlement any more than copyright ownership itself is an absolute right. Just as there are exceptions to, and limitations on, the exclusive rights of copyright owners (for example, fair use), there are exceptions to statutory damage awards. In cases of “innocent infringement,” the court may reduce statutory damages to $200; for certain infringements by nonprofit educational institutions, libraries, archives and public broadcasters, the court may reduce the award to zero.3 The fact remains that the possibility of statutory damages, however remote, is the single biggest obstacle preventing use in orphan works situations. In cases of non-willful infringement, statutory damages may be as high as $30,000 for each infringed work. In cases of willful infringement, they may be as high as $150,000 per infringed work.

We are not suggesting, in general, that the scheme of statutory damages is unjust. On the contrary, statutory damages fulfill legitimate and necessary purposes. That said, we do believe that in the case of orphan works, the rationale for statutory damages is weak. By definition, in the orphan work situation, the user is acting in good faith and diligently searching for the owner, and the owner is absent. The purposes of statutory damages, i.e. making the owner's evidentiary burden lighter and deterring infringement, weigh less heavily here. If the copyright owner is not identifiable and cannot be located through a diligent, good faith search, we believe the appropriate recovery is reasonable compensation. If orphan works legislation does not remove statutory damages from the equation, it will not motivate users to go forward with important, productive uses. On the other hand, the prospect of orphan works legislation may motivate some owners to participate more actively in the copyright system by making themselves available."

Source - http://www.copyright.gov/docs/regstat031308.html

Apr. 13th, 2008 10:49 pm (UTC)
Except this is why the same article also proposes a safe-harbor provision for those using probably-orphaned works for nonprofit purposes.
(no subject) - (Anonymous) - Apr. 14th, 2008 02:06 am (UTC) - Expand
(no subject) - maradydd - Apr. 14th, 2008 02:41 am (UTC) - Expand
(no subject) - (Anonymous) - Apr. 14th, 2008 02:47 pm (UTC) - Expand
(no subject) - (Anonymous) - Apr. 19th, 2008 02:09 pm (UTC) - Expand
Apr. 13th, 2008 10:29 pm (UTC)
Hey there - I found this post via cleolinda - this guy annoyed me so much I made a post of my own, in which I linked to this one. Just wanted to let you know!
Apr. 13th, 2008 10:40 pm (UTC)
Hey, thanks! Your post makes good, solid points -- thanks for adding your voice. Also, LOL at probable libel against David Carson.

I see that you were an L3 back in 2006. Are you practicing now?
(no subject) - foresthouse - Apr. 13th, 2008 11:09 pm (UTC) - Expand
Apr. 13th, 2008 11:01 pm (UTC)
Excellent write-up!
This is an excellent blog and explanation of the true state of affairs - thank you! (I was a bit chary when I saw the original article anyway, but it's good to have that clarified.)
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