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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 )
Page 8 of 11
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(Anonymous)
Apr. 16th, 2008 07:09 pm (UTC)
Graphic Arts Guild on Orphan Works
An artist contact from SF sent the following...
best, A.


There's some info on orphan works here from an artists perspective that's different from Larry Lessig. They are pdfs.


http://www.gag.org/activities/advocacy.php
(Anonymous)
Apr. 16th, 2008 08:34 pm (UTC)
THE ILLUSTRATORS’ PARTNERSHIP Reponds to this blog
The organization in the frontlines of this fight has made a point to answer every point in this blog:

FROM THE ILLUSTRATORS’ PARTNERSHIP:

We’ve seen “Six Misconceptions About Orphan Works” circulating on the Internet. It’s a well-reasoned piece, but has one problem. The author cites current copyright law to “debunk” concerns about an amendment that would change the law she cites.

How would the proposed amendment change the law? We’ll get to that and other questions in a minute. But first, let’s answer the broader charge that news of an Orphan Works bill is just “an internet myth.”

click for more
http://www.lostpencil.com/wordpress/?p=225
http://illustratorspartnership.org/
(Anonymous)
Apr. 16th, 2008 10:14 pm (UTC)
Metadata & piracy
Ethan G. Salwen wrote an article titled "Basic Metadata: Don’t Process Without It. Adding Contact and Copyright Metadata to Your RAW Processing Workflow" which was published in the March ’08 edition of Rangefinder.
This is an article for professionals protecting themselves.
People think it is no big deal to scan, print and distribute images taken by a professional. This is why small businesses can't survive and why the U.S. is going to become one giant figurative Wal-Mart. Why do my daughter's school pictures cost so much? Because some parents buy the smallest package, scan, print and share. Why does computer software, I need to run my business, cost ten times it's actual worth? Because people pirate it. Good times ahead...
Just my two cents.
-Cal
pfeffermuse
Apr. 16th, 2008 11:58 pm (UTC)
Via Metafandom
If I understand this correctly:

  • The tin-type photos from the 1860s of both my great-great-grandfathers are out of copyright, since we're talking roughly 150 years since the photos were taken.

  • The professional color-retouched photos of various family members (and their dog) from the 1890s may or may not be still under copyright. If one assumes the photographer was a minimum of 16 years old at the time the pictures were taken and lived to the ripe old age of 96 (d. 1970), then the photos are still under copyright. If one assumes the photographer was older, then the photos would likely be out of copyright.

    In that scenario, how would it work: take the youngest, middle or oldest likely age for the photographer?

  • The professional picture taken of my father in his Marine uniform before he shipped for Europe (c. 1944) doesn't belong to me but to the photographer/photographer's estate?

    I'm confused. All I want to do is preserve family history for my genealogy research.
(Anonymous)
Apr. 17th, 2008 04:19 am (UTC)
Not running for the hills, but...
I'm fully confused as to why something like photo remastering, which has been a problem for a while, at least before the internet went through its massive bubble, comes up now. That said this is by nonfactual experience so don't quote me.

Other than that, the fact that copyright users would have that many more dynamic points like "Good faith searches" and the like to argue over makes things the less definite. Things that aren't definite have historically been made the playthings of very expensive lawyers who are, of course, apt to be hired by very large firms. This, however, is jsut a personal bias at its core I suppose.

Other than that, I get it, you hate Simon, but you did a good job of making your spite contrast from the factuality of the second half of the article, nut a fan of that.
(Anonymous)
Apr. 17th, 2008 02:19 pm (UTC)
Re: Not running for the hills, but...
And for those who still are on the fence about if this is a real thread or not:
DONT RUN FOR THE HILLS,
Stand and fight.


http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00258

It’s Back!

by The Board of the Illustrators' Partnership


February 26, 2008

Just when you thought it was safe to draw a picture without putting a copyright symbol on it, the Orphan Works bill has returned.

Orphan Works “will likely be a priority...this spring” for the House Judiciary Committee, writes Andrew Noyes in the National Journal, Feb. 21, 2008

According to Noyes, “American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,” adding that if it does, "’we'll be dancing in the streets.’" But the article notes that “last time around,” artists did a different kind of dance:

“The Illustrators' Partnership of America argued in letters to lawmakers last time around that the bill was written too broadly and would have exposed artists' work to infringement upon creation.”


Re: Not running for the hills, but... - (Anonymous) - Apr. 19th, 2008 04:06 pm (UTC) - Expand
(Anonymous)
Apr. 18th, 2008 04:52 pm (UTC)
What you may not understand?
See our government doesn't yank everything away all at once, and the people who are following the war on our freedoms understand this about the people in power. So while yes, your explanation sounds friendly, the effects of what this bill can evolve into are very outrageous. Just look at what American citizens sacrificed with the Patriot Act. When will people wake up and just fight for their rights. Take RFID for example: It seems harmless enough at first glance, simply a way to track goods in the inventory right? But what happens when they tag immigrants and eventually every citizen. Sounds Extreme but Freedom is not Free.

Abraham Lincoln "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves".

"If all do not join now to save the good old ship of the Union this voyage nobody will have a chance to pilot her on another voyage." The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume IV, "Speech at Cleveland, Ohio" (February 15, 1861), p. 216.
(Anonymous)
Apr. 19th, 2008 07:11 pm (UTC)
Mark Simon Answers His Critics

Following the unprecedented response to his last column, Mark Simon offers supporting evidence regarding the threat to artists' rights.

http://mag.awn.com/?ltype=pageone&article_no=3615
(Anonymous)
Apr. 19th, 2008 11:21 pm (UTC)
Registered copyrights can be orphaned
You have another misconception in your article. You stated, "If your copyright is registered, you may also claim statutory damages (between $750 and $30,000 per work -- up to $150,000 per work if you can demonstrate that the infringment was willful"

There is nothing in Marybeth Peters report to indicate that registered copyrights cannot be orphaned or that her office's proposed changes do not also apply to registered works. There is no means to search the copyright database for a specific image if that image has no identifying marks on it (whether none were applied by the copyright owner, or the paid medium in which it was used left none, or a bad faith user deleted it). Even if it were possible to find that information in the copyright office's system, the contact information could be outdated based on the age of the copyright. That would then be an orphaned work. Once that work is deemed a copyright orphan, the new rulings of fair and reasonable payments apply once the copyright owner surfaces after the work is infringed.

As Marybeth Peters stated, "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." There is no exemption for registered works. If a registered copyright owner cannot be found by some kind of diligent, good faith search, it is an orphan. "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."

Registered or not, orphan copyrights become legal fair game for use. By taking away the option to sue for damages, there is very little risk for using orphaned works. The only risk is paying whatever amount would normally have been paid to however few people ever find that their copyrighted works are being used. In the case of bulk sales of orphaned works, that's next to nothing.
(Anonymous)
Apr. 21st, 2008 04:32 am (UTC)
Spurious Arguments
If something prior to 1988 it needs to have a copyright symbol on photo with name of copyright holder.

So problem isnt with real ols stuff.

Problem is with newer works that dont require copyright symbol, so the intentions of creator are not explicit. However the law makes it explicit in favor of creator and it is a good law.

There should be a panel that can release articles for reproduction for the sake of posterity, these should be posted on internet with a reproduction and who was authorized to reproduce it so creator can review and claim copyright if he chooses.

Each user of released items should have to register their usage.

This should be funded by an international fund from all countries with copyright laws.
(Anonymous)
Apr. 21st, 2008 02:49 pm (UTC)
Great Job!
Thank you so much for this article! I'm so glad that some writers can actually research before they write and article! I mentioned your article in my blog: http://painting.suite101.com/blog.cfm/orphan_works_legislation
Thanks!
Alina
ukiby_chan
Apr. 21st, 2008 08:29 pm (UTC)
Perhaps he's envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a "good faith" search and forges ahead with an infringing use.
*lol*


Ahhh... So that's what the law is all about. I see. When i first saw this, I was like "WTH????? How come people can agree with this?" but now things sound way more sensible, really.
(Anonymous)
Apr. 22nd, 2008 12:49 am (UTC)
When people like Mark Simon stretch the truth about what is going on or what could happen, it doesn't help anyone. People just need to state the facts! How is he going to get any respect if he doesn't tell the truth in plain english?

Mark
(Anonymous)
Apr. 22nd, 2008 02:07 am (UTC)
Diligent searches proably won't be very thorough
Your expectations that thorough searches will occur don't take into account that the purpose of this proposed law is to make it easier to use copyrighted works when the owner cannot be found. The "diligent searches" mentioned often in the Orphan proposed legislation is going to mostly be lip service. There will be some level of effort, but there is no way to ascertain exactly what that will be. The purpose of this law is to make it easier to use copyrighted works. To that extent, damages are removed from the equation. Anything that conflicts with the goal, of making it easier to use old copyrights, including "diligent searches", is a secondary concern. Educational resources and museums do not have the resources to perform expensive exhaustive searches.

By the way, try reading the full orphan report. You'll learn that this act includes unpublished works, including diaries (pg 100): "the privacy of the author might be harmed when sensitive, non-public information (such as a personal diary) is made public without the consent or control of the author. When placed in the context of the orphan works situation, however, the likelihood that such harm will result is reduced substantially. Recall that the author’s remedies would be limited only if the author cannot be found through a reasonably diligent search. Thus, with respect to the first interest of protecting the author’s professional and creative interests, so long as the author takes steps to be locatable, such as by marking copies with his name and contact information, maintaining a web site with contact information, and/or enlisting an agent or other easily located representative, a user would be able to find the author and not publish the material under the limitation on remedies for orphan works. Indeed, the fact that an author has a public reputation that he feels might be compromised by publication of unpublished material almost certainly indicates he would be locatable by prospective users." "we do not recommend excluding unpublished works from the orphan works system." you'll learn that this act includes unpublished works, including diaries (pg 100): "the privacy of the author might be harmed when sensitive, non-public information (such as a personal diary) is made public without the consent or control of the author. When placed in the context of the orphan works situation, however, the likelihood that such harm will result is reduced substantially. Recall that the author’s remedies would be limited only if the author cannot be found through a reasonably diligent search. Thus, with respect to the first interest of protecting the author’s professional and creative interests, so long as the author takes steps to be locatable, such as by marking copies with his name and contact information, maintaining a web site with contact information, and/or enlisting an agent or other easily located representative, a user would be able to find the author and not publish the material under the limitation on remedies for orphan works. Indeed, the fact that an author has a public reputation that he feels might be compromised by publication of unpublished material almost certainly indicates he would be locatable by prospective users." "we do not recommend excluding unpublished works from the orphan works system."

There is an important thing to think about when you read that your diaries are unpublished works that can be considered a copyright orphan. The copyright office thinks that it is your responsibility to ensure that you put identifying information on your diary to ensure that you can be contacted to avoid it being published.

That is the new logic behind this legislation. It is now the copyright owner's job to make sure that the owner can be found. This is removing some of the responsibility from the person who wants to use copyrighted works.

Richard Gagnon
(Anonymous)
Apr. 22nd, 2008 02:57 am (UTC)
GET YOUR FACTS STRAIGHT
http://mag.awn.com/index.php?ltype=pageone&article_no=3615

I'm very grateful that you would put much time into this topic as you have, and that many people have responded and are becoming aware of this issue.....but you all NEED to get all your info in order. Don't begin to think that the Orphan works is not legit, and definetly don't try and sugar coat it either. Artists need to get informed and stand up for their creative rights...Yes, I agree its not good to go all crazy about something, but it is equally as fatal not do anything and encourage others to be laxidazy about it too. Either get informed and do something about it, or sit back and let them take your art and money.

All of you should please read this - http://mag.awn.com/index.php?ltype=pageone&article_no=3615

Thanks.
(Anonymous)
Apr. 23rd, 2008 01:09 pm (UTC)
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

FROM THE ILLUSTRATORS’ PARTNERSHIP

April 23,2008

Today the House and Senate sent us draft copies of the new Orphan Works Act of 2008. They haven’t officially released it yet, but we’ve been told the Senate will do so this week. A quick analysis confirms our worst fears and our early warnings. If these proposals are enacted into law, all the work you have ever done or will do could be orphaned and exposed to commercial infringement from the moment you create it.


You’ve probably already heard Mark Simon’s webcast interview with Brad Holland. If not, please listen to it at:
http://www.sellyourtvconceptnow.com/orphan.html. <http://www.sellyourtvconceptnow.com/orphan.html>


Then forget the spin you’ve heard from backers of this bill. This radical proposal, now pending before Congress, could cost you your past and future copyrights.


The Illustrators’ Partnership is currently working with our attorney - in concert with the other 12 groups in the American Society of Illustrators Partnership to have our voices – and yours - heard in Congress. We’ll keep you posted regarding how you can do your part.


Please forward this information to every creative person and group you know. Mr. Holland and Mr. Simon have given their permission for this audio file to be copied and transferred and replayed.


For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185


If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com
Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area.
(Anonymous)
Apr. 24th, 2008 12:08 am (UTC)
Six reasons could use some more thought.
1. "There is no bill" - maybe for another week or so. Advanced copies have been seen and only need to have a number attached to them before they are introduced.

2. "Copyright will still be recognized" - In name only. The effect of the legislation is to make it possible for infringers to pay a small fine. The cost of tracking them down becomes prohibitive. The practical effect is no protection. The cost of asserting and protecting rights will now be a black box, cost unknown.

3. "Copyright will still be protected by international treaty" - Again In name only. Unless registration fees are paid (unknown amount) no practical protection will be available in the US. The legislation gets around the Berne Treaty by not requiring registration. But if you don't register, there is no practical protection. The rest of the world may march to a different drummer, so my work may be safer overseas...

4. "Others can not claim my copyright" - maybe yes, maybe no. She says she is not a lawyer and claims no authority on the subject. There are lawyers who claim otherwise. If someone makes a derivative work of your unregistered image, then registers it and makes a claim against you as having the derivative work. What will happen? Will the law recognize your rights? The courtroom is a crapshoot.

5. "Artist are already at a disadvantage under current law, this will not change" - wrong, flat out. While this law mandates commercial registries, which is a good idea, it takes away the stick needed to enforce user compliance, by burdening artist with potentially onerous registration costs and time requirements, and then removing penalties for the incomplete searches that users will preform. This puts us at an even deeper disadvantage than before.

6. "Display of work will not automatically orphan works" - a red herring. If a work is taken, the identity of the author is separated from the art. Now the taker can claim they "found" it in that condition. It is therefore available to be defined as "Orphaned". Assuming they also claim they checked out a few "registeries", they now have a practical defense that will deture any lawyer from helping you with your case. There is no way to prove malice and intent. Any time you spend tracking down the offender and bringing them to justice will not be compensated in court because this new law defines the penalty to the taker's advantage.

There are real problems with each of these rebuttals. I would suggest those wishing to use orphaned works ask for an agreement the gets the blessing of artists, as other countries have done.

Britt Griswold
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