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!)

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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.

Comments

How many valid needs are there for orphaned works?

[(Anonymous)]

I haven't seen a lot of great examples of where orphaned works present a problem.

I know of a local photo store that will restore family photos without worries about the copyright owner of the photos. It's hard to imagine that such a service is violating copyright protection. All it is doing is restoring that photo to the level of quality it had when it was originally taken and returning the restored copy to the person who had the original. Fair Use ought to easily cover that process because the store is not using the photo--it is only restoring it. Now, if the store decided to advertise a "before and after" promotion with the photo, there might be reasons for concern from a copyright standpoint.

A museum, given old photos by a family, probably can also use such photos, under the Fair Use provisions, for a historical montage of the town without concerns for being sued by the original photographer. The exhibit is about the town and any single photograph is part of a larger work with original material provided by the museum. Of course, one could ask why the museum cannot obtain similar photos through established sources, such as the local newspaper and government offices. Things can get dicey if the museum wants to promote an exhibit of a local photographer without having permissions to use that photographer's works.

The number of honest legitimate uses for orphaned works is fairly small compared to the less honest marketplace that is looking for a way to make money off the copyrighted works of others without having to pay for the right to use those works. The tricky part is crafting language that provides a valuable means of showcasing works that have been forgotten over time while maintaining protection for the creative people who ought to profit from their work. Although there has been some "sky is falling" panic, changes to copyright law are things to be concerned about.

Keep in mind that your concerns, as a writer, differ considerably from those of a photographer or artist. The future market for most written works, that could potentially be orphaned, is much smaller than that of photos and paintings. Artists and photographers have to worry far more about their works being amassed in collections sold either on CDs/DVDs or encompassed into paysites specializing on their types of images, be they clip art collections or themed paysites.

While it seems very reasonable on the surface, for the law to require that a site cease using a photographer's images upon notice of a violation, photographers routinely can find their works infringed on hundreds and thousands of sites. For every site they get to comply, there are many more being created, sometimes by the same people that infringed them in the first place. By altering laws, to allow use of orphaned works after an unspecified effort to contact the copyright holder, Pandora's Box becomes opened. Many shady paysites crop out identifying information from photos and that suddenly makes an image, which used to be easily be traced to the copyright holder, an orphan. Today, there is no relief available to use such images. If a paysite cannot readily show ownership of the images, that site risks an expensive copyright lawsuit. Creating an "orphan" category of copyrights relaxes the risks of using images whose source is not readily identifiable. While you might believe that great diligence will be expected to find the copyright owner, the earlier attempts to craft such laws didn't define what an acceptable effort was or require proof of such efforts. It would take court proceedings to determine what those acceptable levels are. Once it's defined, it will be easy for crooks to claim that they did all that effort when they never did anything. The field of writing doesn't have the same levels of concerns. There aren't a lot of paysites offering free copyrighted material to read without the writer's name on the works.

Re: How many valid needs are there for orphaned works?

[(Anonymous)]

Is anybody aware of a legal precedent where a photo restoring firm was successfully sued by a copyright owner? Restoring a photo is akin to restoring an antique with a licensed design. It's restoring it to its original condition. While there are a lot of crazy lawsuits out there, it would be hard to imagine a photographer getting upset enough to sue somebody fifty years later simply because they wanted to restore an old photo they'd paid for back then. This may be an interesting "thought" exercise about the degree that copyrights can hinder something that affects the average consumer, but it's a meaningless one if a link cannot be provided to shows a successful lawsuit for that type of activity. If this is amongst the best arguments to relax copyright laws, it's pretty flimsy. If it's that big an issue, provide a fair use exclusion for such an action as being allowable.

In fact, adding clarification to Fair Use laws about what is okay and what is not okay is a better solution than creating a new category of orphaned exclusions from standard copyright protection. Opening up fair use for historical documentaries and educational use wouldn't upset too many people. Opening up orphaned work for clip art collections, paysites, book collections, and many other commercial products mining free "orphaned" images is not something any artist or photographer wants to see.

All the examples I've seen, for supporting these changes, seem to fall under things that can be accommodated by clarifications in the Fair Use portion of copyright law without making any larger changes.

It's the risk of damages that stops large scale commercial copyright infringements from taking place. There is less risk in hiring a photographer or artist to create a new work than risk damages stealing older works (which is a good thing for artists and photographers). Eliminate the financial recourse that an artist has and a big company can calculate that the risk of getting caught, and only having to pay normal compensation when caught, makes it highly profitable to release a collection of images that cost nothing to amass. They'd only have to pay for the copyright owners that catch them and, if there are only a few images in a thousand pack, give those artists the few reasonable compensated dollars they would pay them up front if they had to. Most of the artists, whose work they collected, will never find the infringement, so they're still way ahead of the game.

Let's fix the specific examples in copyright law that are unreasonable and not weaken the rights of copyright owners. The risk of abuse in these possible changes are far greater than the small number of valid things that will be fixed.

Re: How many valid needs are there for orphaned works?

[elf]

What ketsuban said. Using photos in a historical montage is probably fair use; copying them to disk without the photographer's permission is not.

And mostly, nobody cares. (Hence the term "orphaned.") However, the first time a store gets sued because an irate family member decides that Cousin Belinda shouldn't have gotten Great-Grandma's photo album, and tracks down the grandson of one of the photographers and whispers to him about the great historical photo book he could be making money from ... the store will stop offering that service. Even if the lawsuit collapses for lack of funds.

It only takes one wacko lawsuit to get a business to block all further activity of that type. That's what this is trying to prevent.

Re: How many valid needs are there for orphaned works?

[buddhakitten.livejournal.com]

Then go to CVS. Or have your photos digitally restored by a professional (especially if they're over 100 years old. Do you REALLY want to put your historical artifacts in the hands of WALMART?!). Most professionals will be discrete, and also won't take into consideration work for hire issues unless you actually bring them up in a publication context.

Re: How many valid needs are there for orphaned works?

[elf]

Over 100 years? Copyright not an issue. It's 50-year-old pics that are part of the problem, ones where the photographer is long gone.

And for WalMart or a professional (I never go to WalMart. For anything.), the law is the same: they need permission from the copyright owner to create copies. Including retouched copies. The copyright owner is the photographer, unless a contract exists which states otherwise.

Most photo-retouching studios are currently fairly oblivious or apathetic towards this; they retouch what you bring them. But if that studio gets an injunction thrown at them for making copies of photos that someone wants to claim... they'll stop offering the service without, at the least, signed waivers claiming that the person bringing in the photos has the legal right to make copies.

Most professionals will be discrete

Saying, "most professionals will break the law as long as we all pretend nothing shady is going in," is not a point against orphan-works legislation. The attitude, "sure, it's illegal, but nobody cares" creates a delightful slippery slope.

Re: How many valid needs are there for orphaned works?

[(Anonymous)]

It's more likely that the copyright owner would sue me for allowing his artwork to be damaged than to sue me for trying to restore it to it's former glory. This is a cute mental game, but it's not justification for the potential changes to copyright law.