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

Image database is part of Leahy's official version of the bill

[island7.livejournal.com]

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?

Re: Image database is part of Leahy's official version of the bill

[enochsmiles.livejournal.com]

The problem with an age-based trigger is that firstly, some things can't be dated easily, but also that a lot of orphaned work comes from the "death" of a corporate copyright holder, and the subsequent impossibility of determining who has the authority to grant permission on the copyright. This happens far more than it should -- there's cases of studios/production companies going out of business, and the director of a film wanting to purchase rights to his work but unable to find who actually owns them after the distribution of the corporate assets.

There's also the issue of individuals dying intestate with no apparent heirs. What happens then? Do we just wait 70 years to use the work? I think most people would agree that that solution isn't ideal. (Artists really should have wills that cover this scenario, but very few people have wills, honestly.)

I do agree, though, that the responsibility for determining if a work is orphaned should be on the entity that wants to use it, and not on the artist. I haven't had a chance to read over the full bills yet, but will try to soon.

Orphan Works Bills

[(Anonymous)]

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?

Re: Orphan Works Bills

[maradydd.livejournal.com]

$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.

Thanks for the rationality

[(Anonymous)]

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.

Still siding with Mark Simon

[(Anonymous)]

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.

About the Illustrators Partnership

[(Anonymous)]

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.

made a mistake about 'Illustrators Partnership'

[(Anonymous)]

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.

Wonderful

[(Anonymous)]

Thank you for your rational and researched article.

Donation of Copyrighted Work

[(Anonymous)]

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.

Re: Donation of Copyrighted Work

[(Anonymous)]

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.

[(Anonymous)]

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.

Actually, this *IS* a real issue - info from artist's lawyer involved in the debate

[overdrive.myopenid.com (from livejournal.com)]

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)."

Congress is spending time on this??

[(Anonymous)]

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.

Question

[(Anonymous)]

A real-world scenario and a question:

- you create a kick-butt photo and place it on your website. On that photo you clearly have a copyright notice line across the bottom and a honking watermark in the middle.

- somebody grabs the photo. They crop the copyright line and because they are talented with the clone stamp tool, successfully remove the watermark.

- they post the picture somewhere.

- a third party comes along, sees the photo, thinks it's fantastic, and wants to publish it. Unfortunately, no ownership info is clearly defined.

- pursuant to the orphan legislation, (and using the exact language in the bill), they:

quote: "...performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright; but (ii) was unable to locate the owner..."

- being unable to locate the owner, they publish the image.

Yes or no - in this scenario your picture could potentially meet the criteria of an "orphaned" photo?

[tinker-jet.livejournal.com]

Wow. Can't believe I fell for the dreck. o.O;; Mind you, I wasn't going to do anything about it. I'm Canadian but I was worried about my American friends.

Sheesh.

Thank you dearly for setting the record straight though. You saved me the worry. ^__^

panic about orphan works?

[(Anonymous)]

thanks for writing and posting this. it's an interesting article that reveals the complexity of the laws governing every inch of our lives. one thing i wonder about is: who could possibly be panicking over orphan work/copyright reform? these laws protect only the huge corporations like disney; they don't protect ordinary persons who merely want access to information. also, noone is his right mind could possibly believe the the fedgov would do anything to protect our freedoms. the 'rightsholders' are quite safe.

Just your opinion of support and hardly "setting the record straight"

[(Anonymous)]

Having stated what you say are facts while only actually giving your own opinions since you admitted have read nothing but the supporters and writers of the bills texts on the bills means nothing. Your article is a simply a support of the bill, laced with demeaning language to those opposed to the bill, who have actual stakes in whether the bill passes or not, unlike you who have none. Your are not an artist or a copyright lawyer so your view of “everything is fine” is only true since you don’t have your livelihood at stake.
You label the opposition as liars and discount their views as hysterics. This is as ridiculous as those of us opposed to the bills labeling supporters as lazy governmental doorsteps or sheep, which by the way, I am not saying. I think you are just a supporter of the bills but that DOES NOT MAKE YOU MORE INFORMED. Do you honestly think that Mark Simon didn’t do any research? That is foolish since he writes for a major publication and you, what, have a blog? Remember, some of what he was using was the statement that the 2008 bills would be very much like the 2006 bills (which weren’t voted on “because they were found to be unfair to the copyright holders” and not, as you allude to, because session ended. That was not the case and it is just another piece of misinformation you put in your support article. You think mark Simon has nothing a stake if he lies? You just chose to ignore the loopholes in the wording of the current bills (which unlike your first point do exist.) Those who have thanked you for “setting the record straight” are just people who WANT to be lulled in to inaction because the are to apathetic to do anything. It is far easier to support what congress puts forward than to fight to oppose it.
You constantly use Marybeth Peters article and make it look like you are talking about the actual bills, they are two entirely different things. She was only making suggestions as to what the bill writers might do. So you didn’t argue anything on the actual bills. I understand that when you wrote this you said that “no such bill has surfaced yet” which only means that Mark Simon and Brad Holand (one of the most highly awarded illustrators alive today) had more info than you. you consistently use statements of argument like “this isn’t likely to be the case” and “there is nothing on the table that suggests that” stating that you have no idea of what the actual bills contain when you wrote your support opinion.
There are many points that an actual art professional should be concerned with concerning how these current bills are written:

First, the concept of this "diligent search." This very term means nothing. Why? A "DILIGENT SEARCH" FOR IMAGERY ON THE INTERNET CAN NOT BE DONE AT THIS TIME. The only way you can currently search for images online is by using WORD searches. Change the words connected to the image and you erase the path to the image once it is reposted under with the altered text, this isn't hard to understand nor is it difficult to do, it is simple. There is NO pixel recognition system currently out there that can make a search for art possible at this time. Even the best face recognition software used by the government only measures the distance between the eyes, and the sizes of certain features. And it only works with FACIAL STRUCTURES and only from front view(and in a few cases side view.) So the idea that a system will be developed to VISUALLY recognize all the different things that can exist in an image is ridiculous. While this technology has been theorized and may even be at some EARLY stage of development, it will be some time before anything approaching this kind of technology is made available, let alone to the internet public. And so, any argument that a "diligent search," documented or otherwise, is a deterrent for the infringer can only be coming from a technologically ignorant person.

I have to break the rest into a second post. Sorry for the wordiness but I feel it is necessary.

[(Anonymous)]

Continued from above:

Well, what about these registries so we can tell people that our work isn't orphaned? WHAT REGISTRIES, THEY DON'T EXIST. They have only been loosely hinted at so far, they are only present in one bill currently at that, and they would take time to establish and most likely be run for profit by private sector with registration fees that have not even been discussed yet (current registration for works of visual art is $45 through the government.) Even then, it is too late. Why? Because the work is already out, on the internet, re-titled, cropped, reposted, and for all intensive purposes, lost. and since it is digital, it has been proliferated for 10 years now. There are billions of these images out there. Think that kind of damage can be undone within any reasonable timeframe if ever? And again, don't fall back on the silly "diligent search" for the author since I have already stated how a "diligent search" for images can't be done at this time if the words connected to the image are changed. Oh, and even if these registries are created, and users are forced to log on and search for authors. how many works do you think will still be "orphaned" because the author didn't register them because they didn't even know their piece was online to begin with and they only register works that they use online or that are part of their portfolio. I have seen countless images, mine and others, that pop up online without the author even knowing they have been put online. Fans do this all the time. Scan in things from books, magazines, art exhibits (when no one is watching) etc. My students have done this to me. They meant no harm by it but it illustrates my point. THE DAMAGE IS DONE and building a dam (registries) won't undo the flood damage that has already occurred. It's like putting on football pads after the game.
Next, this idea that people are infringing now and that this bill changes nothing, or even makes it better. I have stated this before, The wording of what an artist can receive in the court case (unless they pay these registries) is be changed from "actual damages and profits" to "reasonable compensation." Do these look like different words to you. It means more limitations will be placed on what the artist can get as court payment. Do you think that just might have an effect on whether a possible infringer may take the risk to use another's work. This is simple logic again: Reduce the risks, increase the chances someone will try it. Why do you think there are so few base jumpers in the world. A lot of risks perhaps that have to be weighed. This is the very heart of these bill since their ENTIRE PURPOSE was to reduce the risks that would stop people from using this so-called "Orphaned" work. It was the very reason the bills were written. And, it does not help artist by "creates a very specific provision for payment AND makes that payment mandatory" since PAYMENT IS ALREADY MANDATORY. What is different is that the amount of payment possible is being reduced in order to "encourage usage" and "reduce risk." Oh wait, I forgot, this bill only applies to "well meaning users" that have done and documented this "diligent search." No offense, but this is nonsense and I have written why in previous posts.

I believe that these bills are NOT SOME EVIL PLOT TO STEAL OUR WORK. I expect they have well meaning people behind them (at least I sure hope so) but the way the bills are drawn up currently opens far too many loopholes. The amount of debate on this at this very moment proves my point easily. They are poorly written; they do not place limits on who can be covered under these bills or for what purposes, and they are vague in many areas that should be clear before this goes to vote. Waiting until it becomes law drastically reduces what we can do.

one more thought

[(Anonymous)]

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00178

I think perhaps that, while Mark Simon's article was easily one of the poorest written articles I've ever read (and as such it is easy to dismiss the content of his message), it is these kinds of bills that companies use to exploit artists. And, as such, the bill is worth scrutinizing closely and, if it seems potentially harmful (even if it is something that could be used in a way that isn't intended by the bill itself) possibly speaking out against.

[defenestrate-me.livejournal.com]

Personally, I think this would have been a better solution to the orphan works problem:

http://en.wikipedia.org/wiki/Public_Domain_Enhancement_Act

The way this shitstorm spread on DA was just hilarious, really. I facepalmed when I saw those outraged "MY WORKS ARE NOT ORPHANS" stamps, but then all I could do was laugh.

fair use, plus a point about commissioned works

[(Anonymous)]

I may be adding something that has already been posted, because I just discovered this site and don't know how to operate it properly.

Here's a critical point about fair use: It's not a right; it's a legal DEFENSE. You can point out to someone that your use may be fair, but, that's just your opinion. To assert your right with legal effect, you must be in court. In order to be in court, you must be under suit for copyright infringement. You could claim pauperis per, meaning that you can't afford an attorney and want to represent yourself, but this is not a good idea. If you are being sued by a big company, they won't back down easily. Legal costs will run to tens of thousands of dollars. Hundreds of thousands, in some cases. So ya gotta ask yerself, Do ya feel lucky?

COMMISSIONED WORKS: Absent a written contract, work you do for someone else in your own studio will be considered a commissioned work, and you will own the copyright, the same as if you have a contract for a commissioned work. But BIG CAUTION. The ninth-circuit court of appeals has come up with a spoiler: The Doctrine of Implied Non-Exclusive License. This means that if you and the commissioning party intended to have your work used commercially by the commissioning party, that party has the right to use your work without paying you the agreed amount(at least under copyright law). Ironically, you will still have a valid copyright and can resell the work to others. I know this sounds crazy. It also seems unethical to sell to someone else a work you created specifically for a particular client. However, that's the law, at least within the jurisdiction of the ninth circuit. You can trust me on this because I was the plaintiff in the case that established this precedent, back in the 1980s. Also the court does not take into consideration the cost of creating the work. If you have a creative fee of, say, $250 dollars, and a 'manufacturing' cost of $1,000 (such as a foundry fee for casting bronze), and if the client pays $700 dollars in progress payments, The court can add the concept of "equitable estopple." This means that the client, having paid the greater part of the agreed price has an overriding equity in your work. The result is that, not only do you not get your creative fee or profit, but you will be out of pocket $300 (in the example I'm using), plus attorney's fees and court costs

orphaned works

[(Anonymous)]

The biggest thing that we as artists fear is the fact that people WON'T take the time to find the owner. The scenarios you gave were great examples, but they are still a violation of someone's copyright. They would be damaged under this proposition. You might not have stuck the metaphorical knife into them (they're probably dead), so you kill the whole family!! This whole proposition doesn't make any since to me. "If it ain't broke don't fix it!"

Donations to libraries/museums

[(Anonymous)]

You write:

"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."

This is not always true. My wife and I own the rights to the photos from our wedding because we paid the photographer for them and she gave the rights to us.

"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."

This is also not true. You can donate anything you want to a library or museum. They just can not always PUBLISH those photos without permission.

Daryl
Librarian, Editor & Contracts Manager

I wish you were in the real world.

[(Anonymous)]

Meredith,

You do disservices to all that want important information on this future law. You hold yourself out to be the authority on the issues, yet you then say I am not an attorney, so don’t count on anything I say.

I think you are the FUD whom is seriously confused.

Before you discount me read the letter from an attorney below…whom for the record states the real issues.

Next this bill if enacted into law most likely will be unconstitutional and will be challenged by a copyright owner who has the financial resources to see it to end.

To all that read this, let me tell you I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD. US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.

My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”

So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.

As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.

How many of you readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.

Propet USA v. Lloyd Shugart WD WA. Federal Court

Lloyd Shugart

http://techdirt.com/articles/20080425/124144950.shtml#comments


Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm



RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. Our
law firm focuses extensively on the creative arts industries and
represents both manufacturers and individuals through counseling,
Registration and litigation. After a thorough review of the proposed
Bill, the following comments are offered from a legal professional
who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976



Please know that our firm is willing to answer any questions that you
may have or provide testimony on this matter at any time. We are a
law firm that handles these issues on a daily basis. Our
representation is diverse including famous brands, famous artists,
manufacturers and those waiting to be discovered. I personally hold
a Juris Doctor and a Master of Laws in Intellectual Property. We
live copyright law on a daily basis and would see first hand what
consequences this Bill would have on both sides of this issue. Thank
you for your consideration in this matter.

Sincerely,
Tammy L. Browning-Smith, J.D., LL.M
BROWNING-SMITH, P.C.

(reply to this comment) (link to this comment)

Re: I wish you were in the real world.

[(Anonymous)]

http://techdirt.com/articles/20080425/124144950.shtml#comments

Why the Orphan Works bill is not written to protect living artists by sue z on May 3rd, 2008 @ 6:08pm
As a person who has earned a living from licensing my artwork for products I and the majority of artists and designers feel this bill has overlooked our industry . This will give manufactures a license to steal out artwork easy. We are NOT paranoid artists . Our concerns are best described in this letter . This is letter sent to a senator from an IP attorney I have been given permission to post .

Sent Via Facsimile

RE: Shawn Bentley Orphan Works Act of 2008 – S. 2913

Dear Distinguished Members of the Committee:

Thank you for the opportunity to comment on the proposed Bill. Our
law firm focuses extensively on the creative arts industries and
represents both manufacturers and individuals through counseling,
Registration and litigation. After a thorough review of the proposed
Bill, the following comments are offered from a legal professional
who would be "in the trenches" if this Bill were to pass.

Nullification of the Copyright Act of 1976

Artists relied on the provisions of the Copyright Act of 1976 that
did not require them to place the copyright notice on their work in
order for them to own their copyright. The additional provisions of
this bill do not change the language of §401(a). The Act clearly
states that "copyright…subsists from its creation." The Bill does
not state that this language will be changed to "copyright…subsists
from its creation provided that you register, use the correct search
terms, and can pay for it." This Bill puts a large requirement on
individuals to register and use large amounts of financial resources
to protect an artistic work.

Public Notice and Private Databases

Copyright registration continues to be the most accessible
intellectual property protection available to the public. The fees
are minimal and the forms understandable so that an average person
could complete the task with relative ease. The proposed Bill
changes that premise. The use of private databases creates two very
significant problems:

1) Private Databases force individuals to become intimately
familiar with search terms and remain current on any case law that
would direct what constitutes a "qualifying search." The bill
requires the use of search terms that require the average public to
become attorneys or highly skilled researchers to know what terms to
use so that a work of art can be located.

2) The cost for registration for both the US Copyright Office
and any private database(s) could be substantial to most artists who
create multiple works in a short time frame. As well, if an artist
does not feel comfortable filing such documentation due to the
burdensome requirements, he or she will need to hire an attorney
which will prevent the vast majority of artists from registering
copyrights.

The use of search terms and registration with the US Copyright Office
and private databases takes some of our country's greatest treasures
and places them in the hands of private individuals. The Federal
Government is privatizing part of a constitutional function (the
protection of intellectual property). The burden placed on the
individual artist is a far greater crime under this Bill than the
potential that a work of art will not be able to be used because the
owner is not found. The passage of this Bill would eventually mean
there will only be works of the past. It will be almost impossible
for the individual artist to survive and protect his or her work
while making a living as an artist.

It was a lonely search. by Lloyd Shugart

[(Anonymous)]

It was a lonely search. by Lloyd Shugart on Jun 3rd, 2008 @ 10:56am

http://www.jpost.com/servlet/Satellite?cid=1202742156853&pagename=JPost%2FJPArticle%2FShowFull

According to Marilyn Henry, author of Confronting the Perpetrators: A History of the Claims Conference, the process of reclaiming looted art has always been one of the most prickly of all Holocaust restitution issues.

"Countless Nazi victims spent decades trying to find artworks that once belonged to their families. It was a lonely search. The burden was on the victim to find what had been taken, to prove it belonged to him and to convince whoever had it to give it back," she says from her home in New York.

"Imagine looking for a needle in a haystack, finding the needle, and being told by the haystack owner that you had to prove you owned the needle before the war, and then convince him that he should return the needle to you."

(reply to this comment) (link to this comment)

Orphan copyright legislation

[(Anonymous)]

On April 24th of 2008 the 110th CONGRESS 2D SESSION H.R. 5889 was introduced by Reps. Berman, Smith, Conyers & Coble, "To provide a limitation on judicial remedies in copyright infringement cases involving orphan works."

This bill was referred to the House Judicial Committee.

In May of 2008 the bill (now S. 2913) was in the Senate Judicial Committee, chaired by Patrick Leahy.

This bill does exist

Hey everybody

[(Anonymous)]

How is you?