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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. 24th, 2008 04:49 am (UTC)
Your right about one thing, your no lawyer.
Neither am I but I know this, using current law as a counter argument to opponents of a proposed (say work in progress) bill that would supersede the current law is just nuts.
Apr. 24th, 2008 07:08 pm (UTC)
Orphan Works Act IS a problem

Please take the time to read this article by Brad Holland of the Illustrators' Partnership of America. It addresses each of your points listed here and shows why this act IS a legitimate concern for artists (though not a maniacal machination). The article is well sourced and documented.

-Houston Trueblood

Apr. 26th, 2008 06:43 am (UTC)
The dA community was getting out of hand with the 'orphan art works' crud, but, thanks to you, the copyright office or whatever will not be burned to the ground! Thank you. ^^ I plan to show this to a few of my friends, who will most likely spread it around, but it does help. So I hope you don't mind...I'll of course give you credit! I can't thank you enough! -hugs art- I was so scared...
Apr. 26th, 2008 07:06 am (UTC)
Apr. 30th, 2008 06:58 pm (UTC)
Image database is part of Leahy's official version of the bill

According to Senator Leahy's introduction of the bill http://leahy.senate.gov/press/200804/042408e.html there is indeed a section that states:

Section 3. Database of Pictorial, Graphic, and Sculptural Works. The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.

This should be a great concern, since it puts the responsibility on the creator of the work - one who may have to pay for this "service" and track every single image or work they create.

I also don't understand why any new works should be considered as possibly orphaned. Couldn't the bill be restricted to works over a certain age?
May. 1st, 2008 04:31 pm (UTC)
Orphan Works Bills
Copyrights are $45 not $35. If you aren't up to date on this, how can you possibly be up to date on everything else regarding copyrights.

You used as an analogy of finding pictures in the attic that are under copyright but not being able to use them because of the current copyright laws. What if it is a calendar that is using an artist's copyrighted work with the name removed and the artist is still licensing the art. Is it ok to rip the artist off and use her images simply because you cannot find the artist?
May. 1st, 2008 05:28 pm (UTC)
Re: Orphan Works Bills
$45 by mail, $35 if you use their electronic system. Check the Copyright Office website.

The scenario you describe is neither legal, ethical, nor something that would be legitimized under the now-proposed legislation.
Re: Orphan Works Bills - (Anonymous) - May. 3rd, 2008 04:17 am (UTC) - Expand
May. 1st, 2008 05:25 pm (UTC)
Thanks for the rationality
I just received an email about the "Orphaned Works Act", and fortunately did a search on the subject and found your article. Thanks for putting together so many references and taking the time to explain this subject so well. You have no doubt saved many people from getting egg on their faces.
May. 3rd, 2008 04:06 am (UTC)
Still siding with Mark Simon
I think rephrasing this stuff with a sardonic voice does not take away the facts that are still present. I'm particularly concerned with your item number 3. Sorry, but Mark Simon is still spot on with this one. It's ridiculous to think that someone can search for someone, not find that person, and then just use their artwork because they don't know who they are. I don't even know how you would begin to find someone based off of nothing with a picture and an un/signed photo. There would be no way of tracking this, and yes, people would take advantage of it.

And, as you say, when you go to get recompensated, you say you will receive a 'reasonable amount.' In case you're unaware, a 'reasonable amount' right now is whatever the person (NOT THE ARTIST) would normally pay for a piece of work. That means if someone pays $200 to have a piece of artwork in his book, and the artist would charge $5000 for his painting to be used, the judge would still side with the $200 because that's the 'reasonable amount.' This is bull.

If you need something creative for whatever project you're working on, whether personal or business related, you have to either - 1) CREATE IT YOURSELF, or, if you're not capable 2) HIRE SOMEONE ELSE, or, if you're trying to restore family photos 3) FIX THEM YOURSELF.

If you have historical photos you would like to use - HIRE A PAINTER OR AN ILLUSTRATOR TO MAKE A SCENE OUT OF IT. BE CREATIVE! The photos were never yours to begin with; it doesn't matter how you think you can use them now. If you're that passionate about telling a piece of history, put them in a place or with a society where, once the copyright protection is up, people can use them.

People who are in favor of this bill always claim 'current copyright limits creativity.' Sorry, but breaking the current copyright laws does not enhance creativity. The copyright laws we have right now are what allow us to be one of, if not 'THE,' most creative nations in the world.

I'm also concerned with number 6. As you say, "if someone infringed on your work and you send them a takedown notice..." ........ AN ARTIST SHOULD NOT HAVE TO DEAL WITH THIS IN THE FIRST PLACE. Full stop. I cannot say this enough times. If it's not yours, DON'T USE IT. Secondly, I don't want to have to track down my pieces all over the internet. I don't want to have laws that make it easier for my work to be used by others. And thirdly, WHAT ABOUT PRINT? I can't send a takedown notice to someone who's printing my art in a book?! Do you think the court is going to support me when I say 'stop using my art?' No, they'll say, 'here's $200, now be happy and go sit back down.' Bunch of crap.
May. 3rd, 2008 04:34 am (UTC)
About the Illustrators Partnership
Another thing, you mentioned that the "Illustrators Partnership" recognizes that the proposed bill supposedly 'does not harm' etc. The Illustrators Partnership just calls itself that, it really is not supported by the community of illustrators. Try calling the "Society of Illustrators' (which was founded by such legends as J.C. Lyendecker and Montgomery Flagg over 100 years ago and truly has the artists' best interests at heart) for proof - 212.838.2560; ask for either Terry Brown or Anelle Miller. They'll tell you that many, if not most, of the illustrators today hate, vehemently, the "Illustrators Partnership." I've seen some of the legends of todays illustrators just red in the face about some of the things the 'Illustrators Partnership' has done.
May. 3rd, 2008 05:03 am (UTC)
made a mistake about 'Illustrators Partnership'
Sorry, the "illustrators partnership" is supported by the illustration community. I was mistaking names for the Graphic Artists Guild, which is under constant scrutiny. If you'd like to delete these two posts so as to avoid confusion, please be me guest.
May. 5th, 2008 03:58 am (UTC)
Thank you for your rational and researched article.
May. 6th, 2008 03:39 pm (UTC)
Donation of Copyrighted Work
So where did you get the idea that you cannot donate photographs without the copyright holder's permission? If you legally own the photos, you may give them, sell them or destroy them as you please. You may not copy them or change them. (Or maybe you can change them - that really opens up a whole other can of worms.)But you can certainly donate them. If this is the level of your knowledge of copyright, then I'll get my information elsewhere.
May. 20th, 2008 06:21 am (UTC)
Re: Donation of Copyrighted Work
Sure you can donate photos - but the artist STILL gets a tax deduction for a part of the donation, and if you sell the photos you buy from a photographer or painter - the artist is entitled to a cut from that too. At least in California. You need to google Robert Rauschenberg - he's the one who brought about this kind of protection for artists.
May. 7th, 2008 09:24 pm (UTC)
While the "Orphaned Works" concept isn't officially in the works yet, you have to admit its unsettling. If you really think about it, the way American legislation currently works is to refine old laws to make new loopholes.

If your mom wants to get her photos retouched and can't, due to old laws, tell her to get some freeware version of photoshop and do it herself. Learning new things like that helps prevent senility anyways.

The government isn't going to be able to tap out the kinks in such an idea, though they may pass it anyways as is often the case; I think this is where most of the fear over the matter stems from.

Mark Simon may have take a paranoid propagandistic approach to the issue, but the fact that he's successfully drawing a stir from the art community is a good thing, we should all be paying attention to the issue.

Your faith in the legal system is admirable, though entirely foolhardy in the same breath... Unless you're just yammering to prove someone else wrong and boost your own self-esteem, which seems to be the case. You don't seem to be analyzing Simon's article with a fine-tooth comb to illuminate the truth of the entire, but rather with something more akin to a steak knife.

I won't be back to read your reply, so take what wisdom, or fuel for your rage, that you want from this and internalize it.

Have a good day, and do know that your article was still informative in many regards, though you probably already know that.
May. 8th, 2008 12:21 am (UTC)
Actually, this *IS* a real issue - info from artist's lawyer involved in the debate
Summary: this *is* a real issue and is a "fix" to the problem of big companies not being able to profit enough from artists' work.

Background: After forwarding this post on to my close friend who is an attorney for independent artists, photographers, etc here in Los Angeles, he sent me the following info. I'm no yahoo either, I have a BS/MS in CS from MIT & have now founded 3 internet companies. - Bruce Krysiak

From Stephen Donager (http://donigerlawfirm.com/): "I have been working with a handful of attorneys in opposition to the orphan works legislation for about a year now and have fully researched it. The "orphan works problem" is only a problem for those who profit from the unauthorized commercial use of the works of others and want to keep those profits. The copyright act provides for either statutory damages of profit disgorgement as damages for a claim of infringement. For non-commercial uses, there are no profits to disgorge. For "innocent" infringement statutory damages are as low as $250. Thus, the photograph shop and museum examples below are serious red herrings - the reality is that no one is bringing claims against innocent non-commercial users.

Although there is not much in the law that is really simple, this issue is. One of the fundamental principals of copyright law is that: "No one should profit from the unauthorized reproduction of the work of another," regardless of whether the infringement was innocent or not. Orphan works legislation destroys this principal. It will allow people to use works they come across and keep (at least most of) the profits as long as they can show that they undertook reasonable efforts to find the owner.

The problem is that there is no effective way to search for the owner of a work. There is no image recognition software or other vehicle that would make the Copyright Office registrations searchable, and there is no other existing search mechanisms. So anyone can SAY that they undertook reasonable efforts to find the owner (a meaningless statement in most cases),and then use works that they should know they have no right to use with virtually no recourse.

Orphan works legislation is a horrible "fix" to something that is not broken. Among its sponsors are marketing companies, corporations that profit from the use of music, art, and photography in their advertisements, and large studios that are well equipped to protect their works. Artists ARE at risk.

I turned my attention away from this issue about 6 months ago when it appeared that the legislation was not going to get to the floor of Congress that session. I got an email today indicating that it was being sent to the floor again. I agree that last-minute hysteria is suspect, but this is a real issue, a bad piece of legislation, and a good opportunity to communicate with our government representatives (who I understand to be among the uncommitted on this issue)."
May. 8th, 2008 03:18 am (UTC)
Congress is spending time on this??
We don't have anything else to work on than if you can salvage some old photos of your parents wedding??

How about this. Use your memory to recreate the pictures in your head and enjoy them for the rest of your life, i bet they will be even better than the originals over time. Enjoy and celebrate the fact that old photos fade away. Stop living your life in want and live your life knowing that some things are wonderful even if no one knows about them or sees them, Enjoy and relish the place we live in that if I create it, even if you can't find me because I hide under a rock, I Still created IT! Whether or not you can find me or not is irrelevant I still created it and you did not, so unless you have my permission (weather I want you to find me or not) you can't use it to your benefit.

I sure hope Congress can find its way to work on something a bit more important like War, Poverty and our planet. It sure is nice to know my reps are busy worried about someone's old wedding photos and if they can reproduce them.
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