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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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saphira112
Apr. 14th, 2008 03:29 pm (UTC)
Excellent post.

And thanks for sharing meh first name =D
maradydd
Apr. 14th, 2008 04:14 pm (UTC)
You can thank my parents for that one, actually ;) Glad you enjoyed!
(Anonymous)
Apr. 14th, 2008 03:59 pm (UTC)
registering your work
I have registered my work for the past several years. The fee USED to be $35 for a collection but is now $45 (unless you use the beta test program). You can register a collection but NOT for more than one calendar year at a time. You can go back and register all of each calendar year, but they must be seperate submissions, each with the $45 fee.
maradydd
Apr. 14th, 2008 04:13 pm (UTC)
Re: registering your work
Thanks for the clarification! (And yeah, I was assuming $35 for the online registration.) If you don't mind my asking, what sort of work were you registering -- artwork, music, writing? Was it material that had been available on the Internet before, or never-exposed material?
labile
Apr. 14th, 2008 04:27 pm (UTC)
Very nicely worded. Thanks for this.
(Anonymous)
Apr. 14th, 2008 05:24 pm (UTC)
Hey!
I saw you once in 4chan. NO LONGER ANONYMOUS!!!
Anyway, about this article's topic, its good to see a well researched argument, BUT (not that i disagree with you at all) all you say applies to what is legal NOW. The whole scare seems to be based on the premise that the supposed bill would change all that. But still their claims do seem pretty preposterous...
ext_70911
Apr. 14th, 2008 05:26 pm (UTC)
awesome
Thanks for sharing this information Meredith, and for calming the masses. I'm directing everyone to this post who has emailed me about Mark's wacky-tabacky rant. Cheers!
(Anonymous)
Apr. 14th, 2008 06:19 pm (UTC)
It's already next to impossible for someone who can't afford to register their work to protect it.
Ok it's already next to impossible for someone who can't afford to register their work to protect it. I can't believe that any new legislation that may come up would make it any easier. What am I supposed to do just sit here and wait till it's all over with and even if they don't pass an orphan works bill just let anyone who wants to take my work and use it for whatever they want because they know I can't afford to pay to protect it?
maradydd
Apr. 14th, 2008 06:21 pm (UTC)
Re: It's already next to impossible for someone who can't afford to register their work to protect i
What am I supposed to do just sit here and wait till it's all over with

What are you supposed to do? Get informed. Learn about the state of current law, and think about how you would like to see it change. Find like-minded people to develop your ideas with, and opposite-minded people to test your ideas against. Lobby your Representatives and Senators to support the changes you want implemented.

We live in a participatory democracy, but it only works if people participate.
(Anonymous)
Apr. 14th, 2008 07:01 pm (UTC)
Thank You!
Thank you so much for addressing this, your post is very informative. It helps me breathe easier after all the hubbub, and was very good at helping me understand the situation. This issue has taught me one thing, if not anything else - that I will always read more than one source. That should be something I know already, and it is, but I have to admit, that I tend to be a bit lazy when it comes to researching all ends. Thanks for opening my eyes.

~Nyachu (Tanya)
(Anonymous)
Apr. 14th, 2008 07:52 pm (UTC)
Where's my right to choose?
Hypothetical situation.... What happens if some company does a "good faith search" on a piece of work which happens to not contain an identifying mark (could be many reasons for that) and comes up empty. They use it, make a profit, the original artist finds out that someone's removed the identifying mark even though he's registered it (it's happened before). His only option is to sue for "reasonable compensation" under this new proposal. No damages, no penalties. So what's the point?

The point is that it's pointless to sue under the new proposal. You'd only be getting "reasonable compensation" which probably wouldn't even cover legal fees for your lawsuit unless you registered the art. So even if you "win", there's no real deterrent for the infringers to not do it again. It kinda actually becomes a sound business decision to do it. Take the risk, if you don't get caught, you don't pay royalties. Get caught, only pay them "reasonable compensation" (what they would have made anyway). Some deterrent...

At least with present law there's SOME kind of deterrent other than paying legal fees.

I'm all for opening up the doors to orphan works that might otherwise be not used, but not at the expense of the rights of artists to choose who to do business with.
elfwreck
Apr. 15th, 2008 12:44 am (UTC)
Re: Where's my right to choose?
Artists who are concerned about their works being used without permission should *make that concern known.* If they're strongly concerned about commercial re-use of their materials, they should register; a good-faith search would certainly include checking for that.

For non-registered works, a website with info about the author/artist & works would be a strong claim (while a google search is not likely to be enough to count as a good-faith search, anything that would turn up in the first few pages of a google search is likely to be considered public enough that a company should've known, and be subject to the full array of copyright violation penalties for ignoring it). A mention in local zines or newsletters would be weaker, but might also be enough, especially if a claim could be made that those same zines/newsletters are likely to be how the commercial company found the material.

The purpose of this proposal is to help with the HUGE array of copyrighted material that an owner really can't be found for.

--Homework samples from first-graders from 1960-1980, collected for a book on educational patterns; the homework samples may only have first names.
--Photos in a box from your great-aunt's attic.
--Poetry & original song lyrics from a notebook found at Goodwill. ("Good-faith" would probably include calling any phone numbers in the notebook in an attempt to find the author.)
--A collection of fifteen-year-old rejected song demos at a recording studio, where the only info is the name of the band written on the tape. (A "good-faith search" should include checking the studio's records diligently.)
--Paintings abandoned in an art studio that rents out space for classes.

And so on. Orphaned works aren't "those where the owner's name isn't listed on them;" they're ones where the owner truly is difficult-to-impossible to find. Often, they have been "abandoned" by the owner, who in many cases had no concern for copyright. (How many 6th graders put copyright notices on their reports?)
Re: Where's my right to choose? - (Anonymous) - Apr. 17th, 2008 07:41 pm (UTC) - Expand
jamina_chan
Apr. 14th, 2008 07:58 pm (UTC)
Thank you so much
Thank you for this information.. It's really helpful, especially to me. I don't have my own computer at home so I don't just get to jump on the net at will and research long into the night.

But thats besides the point.
Thanks for providing info AND links that help to clear this stuff up. ^__^

I posted a link to this in my deviantart journal, because everyone there is in such a tizzy.. Thanks again for the info!
(Anonymous)
Apr. 14th, 2008 09:01 pm (UTC)
How many valid needs are there for orphaned works?
I haven't seen a lot of great examples of where orphaned works present a problem.

I know of a local photo store that will restore family photos without worries about the copyright owner of the photos. It's hard to imagine that such a service is violating copyright protection. All it is doing is restoring that photo to the level of quality it had when it was originally taken and returning the restored copy to the person who had the original. Fair Use ought to easily cover that process because the store is not using the photo--it is only restoring it. Now, if the store decided to advertise a "before and after" promotion with the photo, there might be reasons for concern from a copyright standpoint.

A museum, given old photos by a family, probably can also use such photos, under the Fair Use provisions, for a historical montage of the town without concerns for being sued by the original photographer. The exhibit is about the town and any single photograph is part of a larger work with original material provided by the museum. Of course, one could ask why the museum cannot obtain similar photos through established sources, such as the local newspaper and government offices. Things can get dicey if the museum wants to promote an exhibit of a local photographer without having permissions to use that photographer's works.

The number of honest legitimate uses for orphaned works is fairly small compared to the less honest marketplace that is looking for a way to make money off the copyrighted works of others without having to pay for the right to use those works. The tricky part is crafting language that provides a valuable means of showcasing works that have been forgotten over time while maintaining protection for the creative people who ought to profit from their work. Although there has been some "sky is falling" panic, changes to copyright law are things to be concerned about.

Keep in mind that your concerns, as a writer, differ considerably from those of a photographer or artist. The future market for most written works, that could potentially be orphaned, is much smaller than that of photos and paintings. Artists and photographers have to worry far more about their works being amassed in collections sold either on CDs/DVDs or encompassed into paysites specializing on their types of images, be they clip art collections or themed paysites.

While it seems very reasonable on the surface, for the law to require that a site cease using a photographer's images upon notice of a violation, photographers routinely can find their works infringed on hundreds and thousands of sites. For every site they get to comply, there are many more being created, sometimes by the same people that infringed them in the first place. By altering laws, to allow use of orphaned works after an unspecified effort to contact the copyright holder, Pandora's Box becomes opened. Many shady paysites crop out identifying information from photos and that suddenly makes an image, which used to be easily be traced to the copyright holder, an orphan. Today, there is no relief available to use such images. If a paysite cannot readily show ownership of the images, that site risks an expensive copyright lawsuit. Creating an "orphan" category of copyrights relaxes the risks of using images whose source is not readily identifiable. While you might believe that great diligence will be expected to find the copyright owner, the earlier attempts to craft such laws didn't define what an acceptable effort was or require proof of such efforts. It would take court proceedings to determine what those acceptable levels are. Once it's defined, it will be easy for crooks to claim that they did all that effort when they never did anything. The field of writing doesn't have the same levels of concerns. There aren't a lot of paysites offering free copyrighted material to read without the writer's name on the works.
(Deleted comment)
Re: How many valid needs are there for orphaned works? - (Anonymous) - Apr. 15th, 2008 03:17 am (UTC) - Expand
Re: How many valid needs are there for orphaned works? - (Anonymous) - Apr. 15th, 2008 03:53 am (UTC) - Expand
(Anonymous)
Apr. 15th, 2008 01:14 am (UTC)
What about the artists?
I know what orphan works are. But the way the proposed bill is worded leaves way too much room for problems to arise. It's not that I have a problem with every single aspect of this proposed bill. I just have a problem with the lack of penalties for those companies who decide to take the risk that a work is truly orphaned.

By all means, we can set up a registry, use professional resources to determine if a work is orphaned or not. Just let there be some type of REAL repercussion for infringing one's copyright. "Reasonable compensation" won't cut it. Present copyright law at least includes damages and is a deterrent for infringement. I want my rights protected as well. I don't want to be forced into a situation where I have to spend my time and resources and sue just to receive my "reasonable compensation". That's ridiculous.

There was a story I heard of one artist who created an illustration that a cigarette company got a hold of. They altered it to include a cigarette in the hand of the character and used it without the artists permission. Not only was work infringed upon, but given the choice, he wouldn't even have done business with the company due to his personal preference of being an outspoken non smoker.

Under this new proposal, he'd have to sit by and take only the normal compensation and not receive anything for the new association between cigarettes and the character in his image. Sure, the company would have to stop running their ad. But the damage was already done. How fair is it that another company can take an artists work (even unknowingly) without permission and only have to pay what it's worth when the company was the one that took the risk? It's a win/win situation for them.
(Anonymous)
Apr. 15th, 2008 02:25 am (UTC)
Many thanks for breaking this down logically!
I can't thank you enough. As long as the standard copyright of the owner stills holds, that's what's most important, I think. I just hope for everyone's sake they throw this bill out because it seems to do more harm than good. (Just my opinion.) I don't blame people for being afraid about it. The bill itself is pretty sketchy as far as punishment and the statutes of limitations aren't any help. I plan to make my living writing, and protecting what I have is already difficult enough. What stinks about all this is no one can trust anyone anymore. Thanks again.
_bulldoze
Apr. 15th, 2008 03:00 am (UTC)
thank you for clarifying. i read mark simon's article and started freaking out, because i've been putting my work on blogs and websites for years, but you really made everything crystal clear and really there is nothing to worry about.

"The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple."

that there is pretty much the big thing that anybody needs to know about this whole situation.

thanks again for a good (and correct) description.
buddhakitten
Apr. 15th, 2008 03:15 am (UTC)
Except that any legitimate rights-holder can be deemed not "found" unless they register with the appropriate private sector organizations. Who determines whether private sector standards for due diligence apply? The private companies that pushed the legislation through in the first place! That registration will probably come at a fee for every work you decide to register. This means that you will have to pay simply to get ATTRIBUTION for works that you would ordinarily be able to put up for free under a creative commons license. And this sits well for you? Someone could EASILY take your work, crop out your copyright notice, and claim your work doesn't have a rights-holder than can be found unless you register your work with the appropriate private companies. That doesn't seem right to me. Call me crazy.

What if someone else decides that your CC license doesn't create protection under the due diligence requirement? What if only registration with the appropriate organizations create that protections? Who makes those decisions? Who is going to ensure that CC licenses ARE protected? YOU!


Edited at 2008-04-15 03:25 am (UTC)
buddhakitten
Apr. 15th, 2008 03:05 am (UTC)
issues with this:

a)In several portions of your article, you require artists to see an Orphan Works Act enacted so that the artist can subsequently defend such action in court to prove it wrong. How many starving visual artists do you know that can defend this kind of action against, say, Disney?

b) you assume that this effects all copyright. It does not. Orphan Works is peculiar to Visual works, i.e. digital, photographic, and graphical arts. These artists are not unionized. They are not well positioned to defend their works. They are not among the higher echelons of lobbying organizations. How many artists do you think were aware of this threat in 2006? How many do you believe were aware that lobbyists are still pushing this even now until the article you mentioned?

c) There is a statute of limitations as far as copyrighted works go. You create the misconception that "even if I see it now, I can sue whenever." That simply is not true. Some courts will trigger the Statute of Limitations when the plaintiff has actual or constructive knowledge of the infringement. ALL courts will trigger the SoL at the last infringing act. But what does this mean? That creates a LOT of speculation, especially as far as digital rights are concerned.

d) Marybeth Peters is fine with leaving this in the hands of the private sector. That is the source of the problem. We don't WANT this in the hands of the private sector, and forced registration is also bad. Why make copyright protection for visual arts more difficult to preserve than the rights of ALL other creative works. Doesn't that create a equal protection issue for you? Because it certainly does for me.

Just because it wasn't passed its first time around doesn't mean that it can't come up again. Never fall into a false sense of security when it comes to your rights. Constant vigilance!


Edited at 2008-04-15 03:33 am (UTC)
(Anonymous)
Apr. 15th, 2008 03:34 am (UTC)
Thank you for this
Somebody posted me a link to your explanation on
robert-pj.deviantart.com
I am a photographer well for hobby rather for profession and I want to ask: If somebody stel one of my works which are only for view or maybe to be sold only like a prints .. than rease the watermark put the art on a site and after a year claim this abandoned work like an orphan work. after that the work is taken by a corporation for commercial. and here is my fear because then the law say if i am right that they have to pay you the price of the work.. what price? stock price? 5 to 100$ for a pic of me or my friends (for example) on 10 000 articles promoting who knws what.. sorry but for me this is a rape. Because until this law doesnt exist they are afraid to be persecuted for milions...

I think that this law must be somehow applied only for extreme cases for nonprofit situations. I dont know about the story of parents weeding pics.. when you pay for something the work is your and a facsimile is always allowed for personal use. this example is made for meking people think only about the positive sides of this law. And like I can see all around law is on the side of money.. expecialy in amerika.

However thank you for the great explanation and for making clear most of the points.. Iam very happy that there are people like you who help to understand.

have a great day and sorry for my english (I am from Slovenija)

Robert Pavsic
robertpavsic@yahoo.com
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