maradydd | Six Misconceptions About Orphaned Works

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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!"

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!)

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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.

Threaded | Top-Level Comments Only

The threat to Fair Use is very clear in this day and age. With the Digital Millennium Copyright Act, WIPO, and the concerted effort of RIAA and MPAA, many of what we regard as Fair Use has been unfairly and unlawfully curtailed in the name of protecting the misnamed intellectual "property."

At the moment, the user is not required to seek the copyright holder for fair usage (to mean derivative, educational, parody, and news-worthy). Would this bill negate the limitations imposed by the Title 17, Section 107 to exclusive rights? Or will it strengthen it? This is not clear.

How about works that are already Public Domain? Are they redefined as "orphaned works?" Would the user be required to unnecessarily search for the copyright owner?

Larry Lessig is right. The bill does not go far enough to ensure that educational, non-commercial users of orphaned works (whether they are or not) are not unfairly burdened with the requirement that they must seek first the original copyright holder.

even though the original creator does come forward after his work has been published he's is not in the same position to negotiate the rights of his work

Not according to what the Copyright Office is recommending. Re-read Peters' statement.

They are supposedly 'orphaned' because they don't have a copyright notice.

Nope, they're orphaned because the creator can't be found. Placing a copyright notice on an image absolutely makes it easier for the creator to be found, and is certainly a good idea. But the absence of a copyright notice does not make a work orphaned; only the inability to find the creator does that.

And no, it does not conflict or violate Berne Convention

You misread what I said above. Creating a mandatory national copyright registry, or requiring the placement of a copyright statement on creative works, would violate the Berne Convention, and thus the Copyright Office does not recommend a federal requirement to place a copyright statement. You can place one if you want, but the deal with the Berne Convention is that national law must protect copyright whether a notice is placed or not.

"currently there is no bill" But after all we are having this discussion because this bill could become a law this year..

*boggle* Are you actually reading what you, yourself, are typing? There is no bill yet. There was a bill in 2006. Perhaps someone will introduce a bill this Congressional session, but until then, it's ludicrous to talk about "this bill becoming a law", because no bill has been introduced.

Edited 2008-04-14 02:24 (UTC)

Would this bill negate the limitations imposed by the Title 17, Section 107 to exclusive rights? Or will it strengthen it? This is not clear.

It's not, and it won't be clear until there is a 2008 (or whatever year this actually gets introduced) bill to discuss, unleash the lawyers on, &c.

How about works that are already Public Domain? Are they redefined as "orphaned works?"

I can't imagine this being the case. Orphaned works are pretty clearly defined as works that are probably still under copyright, but the creator/rights-holder cannot be found in order to confirm this. By the same token, if the rights-holder is known, determining the copyright/public-domain status of a work is (at least on the face of things) pretty easy -- cf. the chart from Cornell that someone linked way up-thread. Particularly given that the concept of "public domain" has long been a part of both national and international law, I'm confident that it won't be going away any time soon.

Thankyou for clearing that whole thing up for me BEFORE I write to all my LJ and opendiary friends about it. (Yeah, you don't know me. This diary was linked to by deviantart)

But an even bigger thankyou for making me aware of the story Anthem. I've just finished reading it and it's now one of my favourites *__*

*shrug* In any case, people take each other to court over $200 (or less) all the time -- it's called small claims court, look it up. (Copyright cases don't go to small claims court, but the principle still holds.)

In any case, this is all premature, as, again, the law has not changed, there is no bill yet, and realistically there's nothing to discuss until there is a bill.

Oh excellent! ^_^ Anthem is totally on my list of books I would take with me if I were stuck on a desert island. I'm glad you enjoyed it!

It made me cry. Only books ever seem to make me cry. (I don't know why I'm saying this, but let's run with it)
Hope you don't mind me adding you to my friends list, but you're kinda interesting. Although the "computer stuff" entirely escapes me. ^__^

I was in high school when I first read it, and I walked around in a daze for the entire next week, just lost in the world of the book. It didn't make me cry, but it definitely changed my life.

Hope you don't mind me adding you to my friends list

No problem! I run a tech startup, so I do tend to post about computer foo quite a lot, but I have other interests too, obviously. :)

It's refreshing to see someone actually taking the time to not only be informed, but to inform others as to the realities of copyright. I would also like to point out that a lot of the FUD outlined in the article is perpetrated by organizations who have a vested interest in (i.e., they think they'll make money by) suing people for infringing use when what is actually happening was formerly fair use. These same organizations pay lobbyists to enact laws so that they can accomplish these things. It's ultimately about control, power, and money.

I would also like to point out that Mr. Simon seems to think a letter to Congress is the same as a bill. It's not. The letter that appeared on March 13 was intended to create almost precisely the FUD that Mr. Simon fell for.

"That isn't the case now, and it isn't likely to be the case even if an orphan works bill passes."

"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."

"Nope. Under US copyright law..."

-- Cogress has passed laws that are illegal, they can and will make and pass laws that will destroy personal rights.

I think you misunderstand what this bill is proposing to do. It will make anything anyone makes (from your family photos you post on Photobucket, to the stories you post on Fictionpress.com) automatically an Orphaned Work that anyone can make money off of.

Essentially, it says, "You are NOT PROTECTED unless you register." No, registery is NOT required, but basically that copyright that applies "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"..." will NOT be protected unless you pay to have it registered for protection.

All those laws and copyright statements you posted will be ignored under this bill.

So how do you PROTECT anything you ever draw, write, or post? By registering through PRIVATE COMPANIES and putting your works into their databanks. Now, it isn't "the moment you step away from the canvis," or "the moment you hit the post button," replace those words with, "the moment you pay to register..."

I think what Brad Holland and Mark Simon are trying to explain is this example: Say simply a photo of your newborn baby. Somebody can find that photo and use it in a magazine and make hundreds of dollars off of it. Upon searching the databases of the PRIVATE COMPANIES, that picture may not be found, and it is near-impossible to find the picture. Then, the person can register it, gain the copyrights, and there isn't a bloody thing you can do about it.

Why? "Well, your picture isn't protected under you, its protected by so-and-so who actually registered it."

I can't imagine anything I write or post on the Internet suddenly requiring registration for protection. www.fictionpress.com has 328,000+ stories and 707,000+ poetry and I can't imagine all of them suddenly losing their copyright. There must be millions upon millions of photos and written peices that could suddenly be up for grabs by anyone with a good eye.

And we're not even talking about people who want their stories published either. I can't imagine having literary agents suddenly needing to add "will help you register your work for protection!" to their advertisements, or worse, "promises not to register your work for our protection!"

Thanks to the both of you. :)

In other words, little of what I've written could be considered "Orphan Works" since I am fairly easy to track down?

Oh, and maradydd, maybe you can answer this: How does "Dumped Works" i.e. if someone writes something, then feels ashamed of it and disclaims that s/he ever created it, work under copyright law?

little of what I've written could be considered "Orphan Works" since I am fairly easy to track down

Yep. The question of its orphaned-ness wouldn't even come up until someone wanted to reproduce it or create a derivative work from it, and at that point, under a hypothetical orphaned-works law, the wannabe user would need to search for the original author (i.e., you) before doing anything with it.

(Ironically, we writers have it easier thanks to Google -- it's dead easy to find the correct attribution for anything I've had published in a non-work-for-hire situation, because that's all collected at my website. The work-for-hire stuff doesn't matter anyway, because I sold full rights to it.)

How does "Dumped Works" i.e. if someone writes something, then feels ashamed of it and disclaims that s/he ever created it, work under copyright law?

I've actually never heard of anything like this; you'd be better off asking a copyright lawyer. I'm really just an interested amateur, and that one's out of my depth -- sorry about that. :(

...but have you read The Fountainhead and Atlas Shrugged, too? I read Anthem my freshman year in HS, but I personally prefer the other two. The Fountainhead in particular.

I wonder if this poster has a vested interest in being factually wrong. I *boggled* at the same thing you did -- "there is no bill, but this bill could..."

Obviously the artist isn't a writer. *snark* But speaking of writing, just because you are semi-retired from writing fiction, you write software for a living -- which is, guess what? Protected by copyright! (And, many would argue, an art in its own right.)

That said, one does not need to have a vested interest in a topic in order to be able to distinguish fact from mass-hysteria, with a little bit of work. I'm quite impressed with the large number of commenters who have said "Thanks for explaining this -- I had posted about this to my journal/was very worried, but now I'm not." The big difference between your post and the one that seems to have kicked all this off is that you are giving people the resources to go directly to the source(s) and confirm what you are saying, rather than simply saying "trust me, the sky is(n't) falling!" While it would certainly be a better world if everyone fact-checked the details about the latest bit of "doom" legislation before telling all their friends about it, it's understandable how this FUD can spread -- especially when it's framed in such a way as to scare people into believing that their whole vocation is at risk. That so many of these people have been able to admit to having reposted an incorrect bit of misinformation and say "I'm glad that what I said was not in fact the situation; we're better off this way", etc. impresses me. Being able to admit when you were wrong is, in my opinion, a greater virtue than being right.

I seriously have to wonder about the people who seem to want there to be some dire threat to their intellectual property rights -- is it an issue of not wanting to have reposted incorrect information, and clinging to that as though it were fact rather than admit that they were misinformed? Or some desire to be "under attack?" Or do they really just lack the ability to check THOMAS, read the Berne Convention (or a summary), etc., and confirm that what you are saying is, in fact, correct?

Not only have I read and enjoyed both of them, I have Atlas from the cover of Atlas Shrugged tattooed on my right arm. :) (Heh, talk about copyright infringement!)

Jim Theiss and The Eye of Argon is a good example. He hated being reminded that he ever wrote it, and once claimed it wasn't his.

There are photographers who will release the rights to reproduce their works after only a couple of years, because that's the length of time that they keep the originals on hand. Glamor Shots stated that when I asked, although it was some years ago. (shrugs) Not all of them are that greedy, is all I'm saying. They do a lot of work to stay in business, but they aren't gonna keep your negatives on file forever either. Once they ditch those, a lot of them will likely consider granting you permission to have another reproduce them an act of good will, that will bring you back to them.

As mentioned, work-for-hire has to be arranged explicitly and in advance. And while it's very trendy and common right now, thirty to fifty years ago it was not; "parent's wedding photos" were probably not done with any particular concern or contracts about copyright.

If they were done professionally by a studio that specializes in such things, copyright may have been considered. If they were done by "cousin Sarah's brother-in-law Ed, who dabbles in photography"--whose name may not have been written down anywhere--there may be any paperwork at all to track down; there was just a verbal agreement "we provide you all the film you can handle; you take pics; we get pics." The existence of copies may not even have been considered.

I think you misunderstand what this bill is proposing to do.

What bill? Name it -- it will either start with HR or SR, and have some series of numbers after it. It's not that hard. (If there is a bill, of course.)

Essentially, it says, "You are NOT PROTECTED unless you register."

Can you show me a bill that says this?

All those laws and copyright statements you posted will be ignored under this bill.

I'd like to read this bill.

So how do you PROTECT anything you ever draw, write, or post? By registering through PRIVATE COMPANIES and putting your works into their databanks. Now, it isn't "the moment you step away from the canvis," or "the moment you hit the post button," replace those words with, "the moment you pay to register..."

(It's hard to argue with what the meaning of a bill is when it only exists in their heads, but I think this is an attempt to argue that reforming copyright to solve the orphan work problem would lead to a requirement for de facto copyright registration. The poster might want to read the full comments threads to see those issues discussed independently of an imaginary bill, but if there were indeed a bill that proposed to do all of these things, such as dismantle the doctrine of slander of title, withdraw from or violate the terms of the Berne Convention, hand over the registry of copyright to private companies, rather than the government (I think that's a new claim -- yay telephone), ignore model release forms (for for-profit uses, even!), make the well-established concept of "orphaned work" an irreversible state, etc., etc., etc., it would be highly unlikely to pass in either house of the legislature.

We could take this step by step to discuss the absurdity, but just thinking in terms of what effect this would have on commercial publishing, it becomes obvious that such bill would never become law, if it were ever to even make it out of committee: essentially anyone could play shenanigans with the [I'll ignore the bit about private companies] copyright registration system to declare copyright on anyone else's work, and would also lose copyright protection in other countries unless specifically registered in their country, and quite likely threaten the nation's standing in WIPO. The MPAA and RIAA lobbyists throwing a hissy-fit, or WIPO/UN pressure, tends to have a much stronger effect on Congressional decisions than Internet hissy-fits.

[continued, damn comment limits...]

Thank God I found out about this. I was bursting mad, and I read your article and this link (http://www.copyright.gov/docs/regstat031308.html) you put up.

Thanks for getting the record straight. Now I'll do my part for the misinformed.

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.

Actually, you can own the photographs without owning the copyright (reproduction rights). So you can donate the pictures, but the museum cannot use them in exhibits, brochures, or books, or put them on its website, nor can anyone scan them into an online database. So it's still a huge complicated mess--Fair Use has traditionally allowed the use of orphaned photographs for limited purposes (e.g. exhibits) if an effort to find the original creator has been made and failed, but it's complicated and Fair Use is not very internet-friendly.

Note: I work in the museum field and have been to panels about this sort of thing, so I'm not pulling this out of thin air.

What's on the table right now isn't a bill. It's a discussion. There's this problem of orphaned works -- works where the copyright holder is usually dead, or where they are completely unknown to someone with a vested interest in the material at hand, can essentially place it in the public domain so that it can be used, where it would otherwise die. This can be things such as an essay written and published without contact information found in an archive from 100 years ago, and there may be an estate who owns copyright on that work, but it is impossible to answer that question, to baby pictures/other photos taken by an unknown photographer that are of importance to the owner of the photos, yet they aren't the copyright holder and don't know how to get them reproduced to preserve them, to such things as motion pictures, where the director/other key person involved has the unedited or edited film, but cannot have it published because the production company went out of business and its distribution of assets wasn't very well documented and there's no successor entity claiming copyright over it. Most people would admit that this narrow selection of potentially copyright-protected works should be freed from the copyright restrictions.

Now, there are a lot of potentially bad side-effects of legislation that attempts to achieve this, such as the bill in that exists in the head of the above poster. So how does one go about drafting a bill that would let works where the copyright holder is likely impossible to determine be published, while at the same time minimizing false categorization of works as orphaned, and providing for fair balance between allowing people to use orphaned works (such as reproducing your grandparent's wedding photos before they crumble), and protecting the copyright holder whose work has falsely been considered orphaned? (I.e., the balance between safeharbor provisions vs. the penalties for falsely asserting copyright, using another person's copyrighted material, etc. in these cases.)

This is an opportunity to propose a bill that solves a problem in a sound way that addresses serious concerns; it hasn't hit the thumbs up/down stage yet, if it ever will. It would be nice to see artists drafting potential orphaned works bills that they would be comfortable with, rather than preparing to sit back-seat to a government government that's out to get them. It would be nice to see some of these people being proactive and suggesting legislative phrasing for this supposed democratic system of ours. Alas.

And we're not even talking about people who want their stories published either. I can't imagine having literary agents suddenly needing to add "will help you register your work for protection!" to their advertisements, or worse, "promises not to register your work for our protection!"

Nor thought about it, apparently. Also, you will apparently be surprised to know that publishers already routinely register copyright on the works they publish. Why would they not register? Registering your work makes sense both from a protection standpoint, in that you can easily show that infringement was not accidental, and from a contact standpoint, in that if someone wants to reproduce your work, you have a potential source for royalties, etc. There's definite incentives to register one's work, but that in no way weakens the fact that copyright is not contingent upon registration from a legal standpoint, nor will it be due to the implications on international law. No one has to register their work -- if they created it, it is copyrighted.

That fits with my understanding with regard to museums. The Internet issue is, as you say, messy. Another messy situation: I've heard of an increasing number of cases where it it very difficult to get reproductions of contemporary photos without proof of ownership of copyright, though -- especially for professional-looking prints. (Cases such as getting reprints of your child's class portrait, for instance.) If you can track down the original photographer, you can usually buy for a small fee the transfer of copyright (which is why it's generally good to get one up-front, where they are usually free), but in cases where you can't locate the photographer, don't know the photographer's identity, or the photographer is no longer in business/it is unknown who the copyright holder is, that can be problematic, since many photo labs, especially the larger, chain ones, don't wish to take on the liability and have a blanket policy not to make copies in these cases.

It seems to me that legislation to clarify the questions regarding fair use in these circumstances would be a good thing, and that there are valid concerns that need to be considered, and that rather than people attacking a bill that doesn't exist, list out the potential pitfalls that such a bill should avoid, while listing the goals and intent as well, and work out a proposal for legislation on this topic. Unless people are arguing that museums shouldn't be able to digitize their entire collections, which I don't think they are, then I don't see what's wrong with the concept of greater certainty about what is an orphaned work, and more flexibility with what can be done with it. If that means strengthening the amount of work one must do to determine the owner, document the process, apply for orphaned work status, whatever, so be it -- but I've yet to read a good proposal for how to address all these potential problems being bandied about in a bill that doesn't even exist.

Legislation that provided clearer guidelines on what is and isn't orphaned work, and made it possible for orphaned work to be used more openly in certain circumstances, would certainly make the museum field happier, would it not?

The laws being a mess generally don't benefit anyone but lawyers, and I think the intention here it so sort out an existing mess to everyone's satisfaction.

Here's the relevant paragraph from the U.S. Copyright Office's FAQ on Fair Use (http://www.copyright.gov/help/faq/faq-fairuse.html):

Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

Which is to say, you can donate or sell or burn the original photographs (that's why people can sell fine art without owning the copyright). Making reproductions, reprints, or copies, however = not so much.

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Six Misconceptions About Orphaned Works

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Hooray for RESEARCH!!!

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