Six Misconceptions About Orphaned Works

[maradydd]

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!"

Actually, no, there isn't. Even the Illustrators Partnership admits this, so I don't know where Mark Simon gets this idea. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet. That gives you, artists and authors, time to get familiar with the actual legislative landscape, research what might be proposed in a bill, and decide for yourself what position to take.

Back on March 13, Marybeth Peters, the Register of Copyrights, made a statement before the House Subcommittee on Courts, the Internet, and Intellectual Property. It discusses orphaned works in detail, and mentions previously proposed legislation that expired when the 2006 House session closed. It was never voted on.

I advise everyone to read Ms. Peters' statement. It's long, but it's in plain English. (Okay, she does like to use big words. But it's not legalese.) If you read it, you'll see that the Copyright Office is in fact concerned about how to handle orphaned works in a way that's fair to original copyright holders. I especially recommend you read the section titled "The Proposed Solution". Read it carefully. It's pretty clear that Mark Simon didn't.

If you want to keep an eye out for upcoming legislation that might affect this issue, THOMAS is a great place to start. I'm also a big fan of GovTrack, which scrapes THOMAS and sorts bills into categories based on topic -- you can even get RSS feeds of bills related to the topics of your choice.

2. "If I want the copyright on my art to be recognised, I'll have to pay to register each piece!"

That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists "from the time the work is created in fixed form" -- in other words, 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" and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

The Copyright Office considered the idea of a registry, but shot it down (emphasis mine):

In our study of the orphan works problem, the Office reviewed various suggestions from the copyright community. These included creating a new exception in Title 17, creating a government-managed compulsory license, and instituting a ceiling on available damages. We rejected all of these proposals in part for the same reasons: we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work.

In the same paragraph, Ms. Peters also noted that the Copyright Office finds it important for any new legislation to cover both published and unpublished works. Existing copyright law, as we saw above, covers all works from the moment of their creation.

It is already possible to register a copyright with the US Copyright Office. It is not required, but registering a copyright gives you a few advantages in the event that someone illegally copies your work. If your copyright is not registered, you may claim "actual damages and profits" -- i.e., the value of the work. (I think this also means that you can recover whatever profits the infringer made by using your work illegally, but I'm not sure about that, and I'm not a lawyer, so don't quote me on that one.) 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, i.e., the infringer knew the work was copyrighted but used it anyway) and attorney's fees -- in other words, if you win the case, the infringer has to pay your lawyer for you. (Whee!)

But, again, there is nothing that indicates that registration will be required. Either Mark Simon read Marybeth Peters' statement wrong, or he made it up.

3. "If I don't pay to register my copyright, anyone in the entire world will be able to use it for free!"

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.

Now, Mark Simon seems to be flipping his shit over Ms. Peters' recommendation of

a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.

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. That's not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work's original owner, the "good faith" provision doesn't apply. And even if the "good faith" provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.

It's all there in writing, folks. This isn't that hard.

Now, the Copyright Office also proposes a "safe harbor" provision for very specific cases:

a safe-harbor for certain limited uses performed without any purpose of direct or indirect commercial advantage. The exception would apply only where the user ceased infringement expeditiously after receiving notice of a claim for infringement.

In other words, if someone infringes your work for nonprofit purposes and you pop up and say "um, no, that's mine," they must immediately take it down. Otherwise, the safe harbor provision does not apply, and they must compensate you for their use of the work. Furthermore, if they don't immediately take it down, they're also subject to the No Electronic Theft Act, which sets out the damages I described above and also establishes criminal penalties for copyright infringement, even when no money changes hands. Nobody is suggesting that the NET Act should go away either.

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.

4. "Someone else could register the copyright on my work, and use that against me!"

Nope. Under US copyright law, only the author of a work, a person or organization that has obtained ownership of all the rights under the copyright initially belonging to the author, the owner of exclusive rights (i.e., someone to whom you have transferred copyright under a "work for hire" agreement), or the duly authorized agent of one of the above may file for copyright registration.

Again, I'm not a lawyer, so I can't speak with any authority on what happens if somebody illegally registers a work for which they don't own the copyright. An illegally registered copyright will almost certainly have its registration revoked (freeing you up to register it yourself, if you so desire). The application form also states that "any person who knowingly makes a false representation of a material fact in the application for copyright registration .... shall be fined not more than $2500." Check out Title 17 of the United States Code, section 506(e) if you want to know more.

5. "If I don't track down people who are illegally using my copyrighted works, I'm SOL!"

Honestly? This is the state of things already. As I pointed out to karine, the Copyright Office does not employ an elite squad of cybercops searching night and day for infringing uses of copyrighted works. They don't have that kind of money. Identifying infringing uses, sending the infringer a takedown notice, and bringing legal action if the infringer refuses to stop infringing are already your problems. They will continue to be your problems for the foreseeable future.

I've also heard some FUD claiming that if someone infringes your copyright and you don't catch them within a certain period of time, you won't have any legal recourse. I have no idea where this misconception came from, but it's also wrong. The important thing to remember here is that copyright is not trademark. Trademarks can be lost if they're not enforced, but copyright is forever (ok, life plus 70). "Well, so-and-so infringed and you didn't sue them!" is not a legitimate defense. Neither is "I've been using this for the last N years and you never said anything!" If you catch someone infringing your copyright at any point in your life, or your estate catches them at any point up to 70 years after the date of your death, you do have legal protection.

6. "Displaying my artwork anywhere means that it automatically becomes orphaned, and anyone will be able to use it!"

This is quite possibly the most ludicrous claim that's being bandied about. According to the Copyright Office, public display of a work does not even constitute publication -- you have to sell copies, or tell other people they can distribute copies, in order for the work to be considered "published". (EDIT: what I tell you three times is true, I am not a lawyer. The Copyright Office's FAQ does not opine about content displayed on the Internet, but you're probably better off disallowing redistribution anyway if this is something you're concerned about.)

Furthermore, as we've discussed above, a work need not be registered with the Copyright Office, or with a private registrar, to be covered by copyright, so if someone infringes on your work and you send them a takedown notice, the work is not orphaned. Full stop. I cannot repeat this enough times.

Copyright is automatic and does not change unless you transfer your copyright to someone else, die (in which case it's automatically transferred to your estate), or commit the work to the public domain. "Orphanedness" is a state which gets removed when the copyright holder speaks up. Even placing a work under a distribution license, such as a Creative Commons license, doesn't change the fact that you own the copyright.

Also, for those of you considering formal registration with the Copyright Office to have the option of statutory damages, here's a neat loophole you can use. Unpublished works can be registered as a collection, as many works in the collection as you want, in a single filing, for one filing fee of $35. Since merely putting your artwork up for display on the Interwebs doesn't constitute "publication", you could register "All My Artwork From The Last Ten Years" as an unpublished collection for a whole $35, and sue the pants off anyone who infringes anything in that collection. (This would also be a fun way to test whether the Copyright Office considers works displayed on the net to be unpublished. If you try this out, do let me know!)

---

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.

kynn also has some cogent observations about orphaned works, Mark Simon, his sources, and some follow-the-money fun here.

Comments

[sajinokami.livejournal.com]

so basically the best thing to do is take the pictures yourself..

[studiorin.livejournal.com]

Thanks for writing this. I thought he sounded a little fanatical, but I freaked out any way. I'm glad I don't have to stay scared.

[mattbayne.livejournal.com]

Check this:

http://www.boingboing.net/2007/05/19/fairy-use-tale-amazi.html

Re: DONT CONFUSE PEOPLE!

[maradydd.livejournal.com]

There is no draft bill yet. No one has been able to identify who its authors supposedly are, and so people are panicking over nothing. Why freak out before there's even a bill to freak out over?

My post actually refers mainly to Marybeth Peters' statement before Congress on March 18th of this year, which, if you'd actually taken the time to read it, you would have grasped. But perhaps you're having too much fun running around shouting that the sky is falling.

On misconception number 4

[(Anonymous)]

If someone copyrights your work as their own, you get to sue them. All you have to do is prove it's yours and not theirs.

Trademarks and patents are different, more complicated, but people get confused because it's all the same field of law.

--AC

[maradydd.livejournal.com]

I think you might be confusing a bill and a law. warnold pretty much took care of the whole draft vs. bill issue -- sometimes drafts are released for discussion early on, but more likely, we'll have to wait to see the text of any proposed legislation once it's actually introduced in the House or the Senate.

The process goes like this:

1. Bill introduced in House (or Senate) -- now it's available for everyone to read in THOMAS (http://thomas.loc.gov/)
2. Bill gets debated about
3. Bill probably gets referred off to committee
4. Bill gets amended
5. Goto step 2 until someone calls for a vote
6. Bill gets voted on
7. If vote passes, bill goes to Senate (or House), where the same procedure happens
8. If vote didn't pass, the bill is dead
9. If votes in House and Senate have passes, bill goes to the President
10. If the President signs the bill, it becomes a law
11. Otherwise, if he vetoes it, it's dead
(there are a couple of odd little exceptions here which I'll explain in a bit

So there's a lot that happens between the time a bill is introduced and the time it becomes -- or, rather, might become -- a law. Here's an example of the schedule for a bill (http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN00214:@@@X|TOM:/bss/d110query.html|) that started in the Senate, passed, then went to the House and eventually became a law. As you can see, it was referred to committee immediately after it was introduced, and the committee spent almost a month before they even talked about it. That's plenty of time for interested citizens to read the text of the bill online, call and write their Senators who are in that committee, and ask them to make either a positive or a negative recommendation on it (or suggest amendments, or whatever).

Then, once it was placed on the Senate calendar, another month went by before it even came up for a vote. Again, lots of time to write and call Senators and tell them to vote for or against it.

Once the bill passed, it waited two months before the House even looked at it. Once they looked at it, they passed it pretty quickly (on the recommendation of the Senate), and then they waited two weeks before they presented it to the President (during which time people could also bug the White House about whether the President should sign it or not), and ten days later later, he finally signed it, and it became a law.

So there's a big process that has to happen between a bill being presented and it actually becoming a law.

As I mentioned above, there are a couple of odd things that can happen after the bill has been presented to the President. If he simply doesn't sign it for 10 days, the bill (that's already been passed by the House and Senate) automatically becomes a law, unless Congress adjourns before those ten days are up. In that very specific case, the bill is automatically vetoed and does not become a law. This is called a pocket veto (http://en.wikipedia.org/wiki/Pocket_veto).

The legislative process is a bit confusing -- don't feel bad about asking for clarification. Wikipedia and the U.S. House of Representatives (http://www.house.gov/house/Tying_it_all.shtml) have some more good information on how it works.

[maradydd.livejournal.com]

Well, my only concern there is that I'm not a lawyer, or even close to being one. Feel free to point to it there, but please advise people that I'm just a regular old public policy geek, and cannot give binding legal advice.

[maradydd.livejournal.com]

People like to freak out. I think it's just a fundamental aspect of human nature.

[maradydd.livejournal.com]

Please feel free to link/repost (with attribution, thanks) wherever you like. :)

[maradydd.livejournal.com]

I have plenty of respect for my audience. Mark Simon, on the other hand, is trying to whip people into a frenzy over a supposed "bill" which doesn't actually exist yet. I have no respect whatsoever for that kind of behaviour, and I think you'll see my ire is leveled at him.

[maradydd.livejournal.com]

Don't forget, in this case we're talking about photos that might or might not have been published a hundred years ago. Anything that was published a hundred years ago is certainly in the public domain now, because copyright laws a hundred years ago were very different from what they are today.

On the other hand, if the photos were taken a hundred years ago and never published, then a different set of rules apply. The chart linked up-thread should explain it reasonably well.

Photos taken today are copyright the photographer for the photographer's entire life plus 70 years, whether they're published or not.

[budgie-uk.livejournal.com]

Many, many thanks for this.

[(Anonymous)]

Why have respect for people who don't earn it? 99.9 percent of the people she is informing lacked the drive to go see the bill themselves and took the bait from some guy who was ranting on a verbal interview. They didn't form their own opinion. Nor did they check the guy's resources.

I don't see condescension at all. I see a lot of over-explaining so that those people who have already rooted themselves in the ground over a hot-tempered argument will have the drive to maybe take a second to think for themselves.

Re: If you want copywrite protection register your work

[maradydd.livejournal.com]

Registering your copyright is certainly always a good protective measure. I personally haven't needed to do it myself (the couple or three copyrights I have registered were done on my behalf by my publishers), but for independent artists/musicians it's smart to take care of it.

[maradydd.livejournal.com]

The link mattbayne posted is a very nice piece about fair use -- it's a good place to start. The legal waters surrounding sampling, remixing and so on are still pretty murky -- there have actually been cases about audio sampling that have gone all the way up to the Supreme Court, and right now we're kind of in a no-man's-land where statutory law (the laws that Congress passes) and case law (the precedents set by state and federal courts) are not entirely in sync. Don't feel bad about being confused -- it's a confusing situation!

Have you read the Copyright Office's FAQ yet? (A few of my links above go to it, or you can just go to www.copyright.gov, where it's linked off the front page.) That's a good place to get answers to a lot of questions.

Beyond that, though, you're very welcome to hit me up with other questions -- just please know that I might not have all the answers. I'm not a copyright lawyer or indeed any kind of lawyer at all, just a regular citizen who happens to be really interested in these issues and likes to write about them. It's my blog, I make the rules, feel free to ask whatever you want. :)

Re: On misconception number 4

[maradydd.livejournal.com]

Not only do you get to sue them, there's a statutory fine of up to $2500. The government doesn't like being lied to. :)

And, yes, trademark and patent law are pretty damn weird compared to copyright law (which is straightforward by comparison!). Most of the confusion I see on the 'net about copyright law comes from people conflating copyright with trademark or patent (e.g., believing that one can "copyright" a character).

[maradydd.livejournal.com]

Glad to be of service. :)

[maradydd.livejournal.com]

No problem. I'm always glad when people have a chance to counter fear with facts. :)

Re: I had a feeling this issue wasn't as bad as it sounded...

[maradydd.livejournal.com]

Well, there are certain things on the Internet that are worth believing. If you see the text of a bill on thomas.loc.gov, you can be pretty confident that yes, it is a real bill, for instance. :)

I should really write up a post sometime on how to do research on the web.

Re: Work for hire changed in 1976

[zalem.livejournal.com]

It's in the definition of "work made for hire" in the copyright act. 17 USC §101.

Re: Work for hire changed in 1976

[maradydd.livejournal.com]

Thanks muchly!

[zalem.livejournal.com]

Thank you for posting this. The hilarious thing is they've been trying to pass this for a while now. It's nothing new. It never gets passed. Why they're freaking out about this now is anyone's guess. There isn't even a current OW proposal out at the moment. And it's not as bad as it seems. Most photographers aren't fond of it, but this guy makes it out to be the end of the world or something.

[ahoushi.livejournal.com]

Bravo, well put.

[crisper.livejournal.com]

Thanks for being a well-assembled response to the hysteria that seems to be flying around all of a sudden. It took me all of two minutes to ask where the HR number of this supposed legislation was, at which point a few more minutes of research turned up Marybeth Peters (who must be the topical event that is triggering the current hysteria) and everything else fell into place (that is, apart.) You'd think people would develop better bullshit detectors on the Internet one of these days.

Off the wagon.

[jersalyn.livejournal.com]

At first I didn't believe the posts then I got so many people tripping over themselves about this I started to think it was credible till I couldn't find anything official other then blog entries on it. Should have followed my instincts. Nice clarification.