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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 11:18 pm (UTC)
Thanks!
Thank you for clearing this up for me =]

The first I heard of this was through Mark Simon's article, so I was pretty pissed.
I'm glad that he's just a wack-job and that this is pretty much harmless.
ex_ntproxy291
Apr. 14th, 2008 12:13 am (UTC)
Its easy to get your balls in a knot over stuff like this, especially when the most vocal people about it are completely fanatical.

Good job clearing the issue up a bit.
ex_ntproxy291
Apr. 14th, 2008 12:14 am (UTC)
BTW I've been linking people to this entry. I hope you dont mind, but I think the voice of reason is what alot of scared artists need right now.
(no subject) - maradydd - Apr. 14th, 2008 12:17 am (UTC) - Expand
(no subject) - maradydd - Apr. 14th, 2008 12:16 am (UTC) - Expand
3_2_1_letsdance
Apr. 14th, 2008 02:41 am (UTC)
Thankyou for clearing that whole thing up for me BEFORE I write to all my LJ and opendiary friends about it. (Yeah, you don't know me. This diary was linked to by deviantart)

But an even bigger thankyou for making me aware of the story Anthem. I've just finished reading it and it's now one of my favourites *__*
maradydd
Apr. 14th, 2008 02:44 am (UTC)
Oh excellent! ^_^ Anthem is totally on my list of books I would take with me if I were stuck on a desert island. I'm glad you enjoyed it!
(no subject) - 3_2_1_letsdance - Apr. 14th, 2008 02:53 am (UTC) - Expand
(no subject) - maradydd - Apr. 14th, 2008 03:04 am (UTC) - Expand
Completely off subject... - (Anonymous) - Apr. 14th, 2008 03:58 am (UTC) - Expand
Re: Completely off subject... - maradydd - Apr. 14th, 2008 04:01 am (UTC) - Expand
(Anonymous)
Apr. 14th, 2008 03:33 am (UTC)
Hooray for RESEARCH!!!
It's refreshing to see someone actually taking the time to not only be informed, but to inform others as to the realities of copyright. I would also like to point out that a lot of the FUD outlined in the article is perpetrated by organizations who have a vested interest in (i.e., they think they'll make money by) suing people for infringing use when what is actually happening was formerly fair use. These same organizations pay lobbyists to enact laws so that they can accomplish these things. It's ultimately about control, power, and money.

I would also like to point out that Mr. Simon seems to think a letter to Congress is the same as a bill. It's not. The letter that appeared on March 13 was intended to create almost precisely the FUD that Mr. Simon fell for.
(Anonymous)
Apr. 14th, 2008 03:35 am (UTC)
Um... hard faith there
"That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes."

"Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it."

"Nope. Under US copyright law..."

-- Cogress has passed laws that are illegal, they can and will make and pass laws that will destroy personal rights.

I think you misunderstand what this bill is proposing to do. It will make anything anyone makes (from your family photos you post on Photobucket, to the stories you post on Fictionpress.com) automatically an Orphaned Work that anyone can make money off of.

Essentially, it says, "You are NOT PROTECTED unless you register." No, registery is NOT required, but basically that copyright that applies "the instant I hit "post" on the form I'm typing this blog post in, the instant you step away from the canvas, the instant you hit "save" in Photoshop, that work is "in fixed form"..." will NOT be protected unless you pay to have it registered for protection.

All those laws and copyright statements you posted will be ignored under this bill.

So how do you PROTECT anything you ever draw, write, or post? By registering through PRIVATE COMPANIES and putting your works into their databanks. Now, it isn't "the moment you step away from the canvis," or "the moment you hit the post button," replace those words with, "the moment you pay to register..."

I think what Brad Holland and Mark Simon are trying to explain is this example: Say simply a photo of your newborn baby. Somebody can find that photo and use it in a magazine and make hundreds of dollars off of it. Upon searching the databases of the PRIVATE COMPANIES, that picture may not be found, and it is near-impossible to find the picture. Then, the person can register it, gain the copyrights, and there isn't a bloody thing you can do about it.

Why? "Well, your picture isn't protected under you, its protected by so-and-so who actually registered it."

I can't imagine anything I write or post on the Internet suddenly requiring registration for protection. www.fictionpress.com has 328,000+ stories and 707,000+ poetry and I can't imagine all of them suddenly losing their copyright. There must be millions upon millions of photos and written peices that could suddenly be up for grabs by anyone with a good eye.

And we're not even talking about people who want their stories published either. I can't imagine having literary agents suddenly needing to add "will help you register your work for protection!" to their advertisements, or worse, "promises not to register your work for our protection!"
(Anonymous)
Apr. 14th, 2008 03:35 am (UTC)
Um... hard faith there
"That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes."

"Nope. There is nothing on the table that suggests that the US will be pulling out of the Berne Convention, which is the international treaty which governs copyright provisions between countries. Marybeth Peters certainly isn't suggesting it."

"Nope. Under US copyright law..."

-- Cogress has passed laws that are illegal, they can and will make and pass laws that will destroy personal rights.

I think you misunderstand what this bill is proposing to do. It will make anything anyone makes (from your family photos you post on Photobucket, to the stories you post on Fictionpress.com) automatically an Orphaned Work that anyone can make money off of.

Essentially, it says, "You are NOT PROTECTED unless you register." No, registery is NOT required, but basically that copyright that applies "the instant I hit "post" on the form I'm typing this blog post in, the instant you step away from the canvas, the instant you hit "save" in Photoshop, that work is "in fixed form"..." will NOT be protected unless you pay to have it registered for protection.

All those laws and copyright statements you posted will be ignored under this bill.

So how do you PROTECT anything you ever draw, write, or post? By registering through PRIVATE COMPANIES and putting your works into their databanks. Now, it isn't "the moment you step away from the canvis," or "the moment you hit the post button," replace those words with, "the moment you pay to register..."

I think what Brad Holland and Mark Simon are trying to explain is this example: Say simply a photo of your newborn baby. Somebody can find that photo and use it in a magazine and make hundreds of dollars off of it. Upon searching the databases of the PRIVATE COMPANIES, that picture may not be found, and it is near-impossible to find the picture. Then, the person can register it, gain the copyrights, and there isn't a bloody thing you can do about it.

Why? "Well, your picture isn't protected under you, its protected by so-and-so who actually registered it."

I can't imagine anything I write or post on the Internet suddenly requiring registration for protection. www.fictionpress.com has 328,000+ stories and 707,000+ poetry and I can't imagine all of them suddenly losing their copyright. There must be millions upon millions of photos and written peices that could suddenly be up for grabs by anyone with a good eye.

And we're not even talking about people who want their stories published either. I can't imagine having literary agents suddenly needing to add "will help you register your work for protection!" to their advertisements, or worse, "promises not to register your work for our protection!"


-- Colonel Marksman
absurdnonsense
Apr. 14th, 2008 06:48 am (UTC)
Thank God I found out about this. I was bursting mad, and I read your article and this link you put up.

Thanks for getting the record straight. Now I'll do my part for the misinformed.
holyschist
Apr. 14th, 2008 06:54 am (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.

Actually, you can own the photographs without owning the copyright (reproduction rights). So you can donate the pictures, but the museum cannot use them in exhibits, brochures, or books, or put them on its website, nor can anyone scan them into an online database. So it's still a huge complicated mess--Fair Use has traditionally allowed the use of orphaned photographs for limited purposes (e.g. exhibits) if an effort to find the original creator has been made and failed, but it's complicated and Fair Use is not very internet-friendly.

Note: I work in the museum field and have been to panels about this sort of thing, so I'm not pulling this out of thin air.
(Deleted comment)
(no subject) - holyschist - Apr. 14th, 2008 07:21 am (UTC) - Expand
(no subject) - holyschist - Apr. 14th, 2008 07:17 am (UTC) - Expand
shiv5468
Apr. 14th, 2008 07:48 am (UTC)
Thank you, thank you, for saving me from having to point this out.

It's practically a public service
(Anonymous)
Apr. 14th, 2008 11:08 am (UTC)
sheesh
this recently appeared in our forum, i posted a link from the forum to here. wanted to spread it around.

i didn't actually notice anything about it til it was posted on our forum, and, admittedly, i was torn on whether it was true or false. And if it was true, i would doubt it would, in the form i was first presented to me, ever pass. As first described it would have caused a lawsuit party with no end. And still I posted something semi-drama-ish and was worried. DUUURRR.

thnx. <3
(Anonymous)
Apr. 14th, 2008 11:30 am (UTC)
O.o
They can NOT pass that bill! If I have to build a barricade I will!
(Anonymous)
Apr. 14th, 2008 01:11 pm (UTC)
Re: O.o
didn't read it either?


there is no bill.


...
kinzokutaka
Apr. 14th, 2008 11:59 am (UTC)
Thanks!
Thank you much for researching and posting about this.
jaina
Apr. 14th, 2008 01:50 pm (UTC)
Via Metafandom
I thought the panic over this seemed a bit odd. Thanks for giving us some facts.
(Anonymous)
Apr. 14th, 2008 02:35 pm (UTC)
hum. still don't like the idea
Okay, so, thanks for clearing out the obviously overdone panic. thought it sounded like a little too much. it does however not change my opinion. I know there is in fact no bill, and not really worth discussion - i just want to give my thought on it.

- As far as i gather the idea is to allow the use of work where the owner cannot be found, there has been an honest search for the owner and nothing more to be done. Once owner appears it is no longer orphaned. Maybe there were good intentions - i just disagree.

i don't regard any work as truly orphaned - there is an owner, you just don't know who it is. Whereas there may be instances where it is "impossible", or at least exceedingly hard, to find the creator/owner of, for example, an image you find online - it is still easily identifiable as "not yours to decide over". It is, unlike a human orphan, not neccessarily (with exception of, for example, old photographs) in need of your loving care to exist. A digital image definitely isn't.

not that it stops all those problems occurring anyway. already happening, just don't care to see part of it legal.

And it still seems highly exploitable to me (of course, i can't make a full judgement as there.... is no bill). just passing a few thoughts out. It just screams lawsuit party to me.
maradydd
Apr. 14th, 2008 04:23 pm (UTC)
Re: hum. still don't like the idea
One thing to remember here is that the flip side of "no one knows whether it's under copyright" is "no one knows whether it's public domain." While public domain material certainly has a creator, it is legal to distribute it, create derivative works from it, and so on and so forth. I can direct a Shakespeare play, or turn it into a comic book, or record a spoken-word version of it, or just publish it as a book, even though I'm not Shakespeare, because his work is in the public domain.

The problem with works in the "no one knows" state is that some of them are in the public domain at this point -- but no one knows which ones. A good orphaned-works policy should protect creators who still hold a valid copyright by making it easy for them to enforce that copyright if they discover that their copyrighted work is being used, but it should also protect users who really do only intend to redistribute a work or create a derivative work from it if that work is actually in the public domain.
duniazade
Apr. 14th, 2008 02:44 pm (UTC)
I have just discovered your blog via shiv5468, and I find it fascinating. May I friend you?
maradydd
Apr. 14th, 2008 04:24 pm (UTC)
Thanks -- feel free!
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( 324 comments — Leave a comment )

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