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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. 15th, 2008 09:28 am (UTC)
knowledge
This Rule is going to affect sharing spirit,then learning speed,If we(digital artist comunities) have been successful in Digital art in a very small amount of time & if its knowledge is developing very fast.

its because of the knowledge in the ONLINE forums, its because we discuss & share many things ONLINE.
its because everyone- although the copyright rules still are not really strong,& you have not a full control over it - have a feeling that your work is always yours.you wont see it framed in a friends house,bought from an orphan image seller!
AND NOone will share their sketches & early stages of their work because THEY wont have time to register all THE sketches!
AND absolutely THEY dont want them to be orphaned!
this LAW is going to destroy this golden period of learning through internet.
ITS SCARY.
maradydd
Apr. 15th, 2008 06:36 pm (UTC)
Re: knowledge
Except there is no law yet because there is no bill for Congress to vote on yet. I don't know how many times I have to say this. All this panicking is premature, and will be until there is an actual bill to discuss.
(Anonymous)
Apr. 15th, 2008 11:06 am (UTC)
Thanks for writing this article. I must confess I didn't find it much of a stretch to imagine that the government would choose to exploit what amounts to an untapped resource to the detriment of ordinary folk - I'm greatly heartened to find that the Animation World Network article contained exaggerations and misconceptions.
(Anonymous)
Apr. 15th, 2008 01:56 pm (UTC)
You are making assumptions
While I appreciate the fact you took time out of your day to post a reasonably researched article it is based on nothing but feel good assumptions that no government legislation will ever be passed that takes away or limits my rights. The current Orphan Works Bill hasn't even been revealed yet so you have no way of knowing if they fixed any of the issues. Also, assuming the government won't pass legislation against the people's best interest...that's stupid. Lobbyists OWN Washington and they will get their way eventually.

This article you claim is over-reacting is launching a preemptive strike BEFORE it's too late and getting people to look at this bill, talk to their political representatives and let them know that this kind of nonsense will not be allowed in our great nation. Let's say you supported the right to bear arms...would you wait until there was strong support in Washington and bills on the table AGAINST that right? Or would you fight assuming that someone is always wanting to take something you love away from you whether its currently up for vote or not? It's easier to defend rights than to win them back.

It's always better to be wary, vigilant and well informed than to be trusting and assuming that the G-man will always have my back. I haven't seen if they fixed the bill and I agree Orphan Works ARE an issue but I definately don't want to see that first draft rewritten but not fixed being passed.
(Anonymous)
Apr. 15th, 2008 05:43 pm (UTC)
Something important and worthwhile.
Butts and weeners. That is all.
water_tengu
Apr. 15th, 2008 05:46 pm (UTC)
side-V-three (<3)
(Anonymous)
Apr. 15th, 2008 07:12 pm (UTC)
Don't buy it
Why when you quote the Illustrator's Partnership website do you link to an old article when there are later articles which are in direct opposition of the one you linked:

In example:
From March 20th:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00261

From April 2nd:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00263

Quoting out of date material to support your argument when there is newer material from the same source in direct opposition to it, is a little underhanded. And tends to invalidate the rest of your argument in my opinion.

Paul B
shafau
Apr. 15th, 2008 07:55 pm (UTC)
Just another voice chipping in to thank you for posting this. It drove me mad seeing so much mass panic over a single article; it's wonderful to see someone actually took the time to research the situation properly. Your response was refreshingly easy to read, and I won't hesitate to point anyone else worried about this bill to your post.

Thank you, thank you! :)
(Anonymous)
Apr. 15th, 2008 09:07 pm (UTC)
wedding pics
just a comment on wedding pics - usually if you hire a photographer for your wedding and buy the photos based on proofs, etc. I think they then belong to you. So you should be able to scan your g-parents wedding album after all. I think....
(Anonymous)
Apr. 15th, 2008 10:38 pm (UTC)
I was very worried about the whole ordeal upon reading Mark Simon's rendition of the bill. But halfway through reading your counter-argument you linked me to Marybeth Peter's description / proposal of the bill. After reading through that I feel incredibly safe and relieved, and also wonder just how Simon managed to get his wires so badly crossed to begin with. :S

Thank you very much for giving me and every other creative person out there peace of mind. ^_^
(Anonymous)
Apr. 16th, 2008 02:46 am (UTC)
You need to keep in mind that artists, working in different artistic media, have different concerns about how potential orphan legislation can affect them. Artists, who create images, face the greatest risks in having their works exploited because images are easier to gather and sell in bulk than any other form of expression.

Below are my concerns about some of the comments made by Marybeth Peters in her statement to Congress on "The “Orphan Works” Problem and Proposed Legislation". Keep in mind that the title of Ms. Peters report to Congress--the phrase "Proposed Legislation" is right there. Maybe there currently isn't legislation to change copyright law, but it's only a matter of time when the head of the copyright office is suggesting that it's time for such legislation.

"we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user."
To a lot of artists, this sounds reasonable. If an orphaned written work is published and the writer is compensated by the standard payments given for such publishing, that's not a bad deal--particularly when that work otherwise isn't generating any revenue. The same applies to a song resurrected or a lost movie being re-released. Artists and photographers have to worry about their work being collected and sold in bulk where any compensation received will be meager compared to the bulk fashion in which their artwork is being trivialized. Probably the most frustrating aspect of “reasonable compensation” is that it is basically a contract being made after the fact where the terms of “reasonable compensation” will be defined by the infringer.

In describing the concerns of photography works, Marybeth states, "They do not always have metadata or watermarks. Certain categories of images are not routinely managed or licensed. These are genuine problems, but they are in fact the very essence of the orphan works problem."
Is it just me or is anybody else tired of hearing that there is a problem that needs to be legally fixed? It is only a problem for people who want to use copyrighted works that they have no rights to use. To the copyright owner, it isn't a problem. As a copyright owner, my concern is that the proposed changes will define my work as orphaned because some jerk cropped my copyright notice off my artwork.

"We are confident that the marketplace offers, and will continue to offer, an array of databases and search technologies that will result in more choices for the copyright owner and more aids for the prospective user. …an orphan works amendment would provide additional incentives for copyright owners and database companies to work together."
This has the ominous overtone that artists will have an incentive to pay a database company to have their works incorporated into the database, or risk having their works being considered orphaned. Photographers will be hit hardest with this because of the volume of work that photographers create. Any law, that penalizes one form of creative expression more than another, is going to be a poor law.

In Peters' conclusion, "In closing, we note that millions of orphan works are precluded from productive use by authors, publishers, filmmakers, archives, museums, local historical societies and other users, despite the fact that the copyright owners may never be found." Maybe the "authors, publishers, filmmakers" that want to use free orphaned works can hire some starving artist to create new works for productive use. My preference is to see existing Fair Use guidelines address the more legitimate concerns of historical usage of old artistic works as part of a greater overall work to document and preserve this country's history. The proposals, in Marybeth Peters' report to Congress, go beyond those haughty goals.

Richard Gagnon
(Anonymous)
Apr. 16th, 2008 12:07 am (UTC)
and, most retardedly of all,
wtf

I cant believe you even published that

what a fuckwad
(Anonymous)
Apr. 16th, 2008 04:58 am (UTC)
Re: and, most retardedly of all,
Look who's talking.
Re: and, most retardedly of all, - maradydd - Apr. 16th, 2008 05:07 am (UTC) - Expand
(Anonymous)
Apr. 16th, 2008 12:42 am (UTC)
This is a more realistic explanation then "OH NOEZ! DONT ACT AND LOZE YAR ARTZZZ!!!!"
(Deleted comment)
(Anonymous)
Apr. 16th, 2008 03:01 am (UTC)
You need to keep in mind that artists, working in different artistic media, have different concerns about how potential orphan legislation can affect them. Artists, who create images, face the greatest risks in having their works exploited because images are easier to gather and sell in bulk than any other form of expression.

Below are my concerns about some of the comments made by Marybeth Peters in her statement to Congress on "The “Orphan Works” Problem and Proposed Legislation". Keep in mind that the title of Ms. Peters report to Congress--the phrase "Proposed Legislation" is right there. Maybe there currently isn't legislation to change copyright law, but it's only a matter of time when the head of the copyright office is suggesting that it's time for such legislation.

"we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user."
To a lot of artists, this sounds reasonable. If an orphaned written work is published and the writer is compensated by the standard payments given for such publishing, that's not a bad deal--particularly when that work otherwise isn't generating any revenue. The same applies to a song resurrected or a lost movie being re-released. Artists and photographers have to worry about their work being collected and sold in bulk where any compensation received will be meager compared to the bulk fashion in which their artwork is being trivialized. Probably the most frustrating aspect of “reasonable compensation” is that it is basically a contract being made after the fact where the terms of “reasonable compensation” will be defined by the infringer.

In describing the concerns of photography works, Marybeth states, "They do not always have metadata or watermarks. Certain categories of images are not routinely managed or licensed. These are genuine problems, but they are in fact the very essence of the orphan works problem."
Is it just me or is anybody else tired of hearing that there is a problem that needs to be legally fixed? It is only a problem for people who want to use copyrighted works that they have no rights to use. To the copyright owner, it isn't a problem. As a copyright owner, my concern is that the proposed changes will define my work as orphaned because some jerk cropped my copyright notice off my artwork.

"We are confident that the marketplace offers, and will continue to offer, an array of databases and search technologies that will result in more choices for the copyright owner and more aids for the prospective user. …an orphan works amendment would provide additional incentives for copyright owners and database companies to work together."
This has the ominous overtone that artists will have an incentive to pay a database company to have their works incorporated into the database, or risk having their works being considered orphaned. Photographers will be hit hardest with this because of the volume of work that photographers create. Any law, that penalizes one form of creative expression more than another, is going to be a poor law.

In Peters' conclusion, "In closing, we note that millions of orphan works are precluded from productive use by authors, publishers, filmmakers, archives, museums, local historical societies and other users, despite the fact that the copyright owners may never be found." Maybe the "authors, publishers, filmmakers" that want to use free orphaned works can hire some starving artist to create new works for productive use. My preference is to see existing Fair Use guidelines address the more legitimate concerns of historical usage of old artistic works as part of a greater overall work to document and preserve this country's history. The proposals, in Marybeth Peters' report to Congress, go beyond those haughty goals.
Richard Gagnon
(Anonymous)
Apr. 16th, 2008 12:50 pm (UTC)
Good
Haha good article
nullcast
Apr. 16th, 2008 02:55 pm (UTC)
The flaw
The concern I've seen mentioned most is secondary copying. Say I post a photo on DeviantArt and someone else swipes it, or uses it without permission and forgets where they got it (a pretty common occurrence). By doing that they may break the link that would make a good faith search successful. The worry there is that orphan works might give use of the unlinked copy a certain amount of legitimacy and prevent collection of damages. Not that this is really how it would work, but that's the scenario I've seen given.

Of course the real solution is NOT orphan works, but a drasticly reduced copyright term. Now that communication makes it easier to monetize on a copyright the terms should be shorter not longer than originally written.
(Anonymous)
Apr. 16th, 2008 05:38 pm (UTC)
copyright
Ah, the voice of reason!
Thank you so much for looking at
this clearly. Eric orchard
www.ericorchard.blogspot.com
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( 324 comments — Leave a comment )

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