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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 plus75 (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):
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
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:
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![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
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.
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
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.
I wish you were in the real world.
(Anonymous) 2008-05-28 06:07 pm (UTC)(link)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) 2008-05-28 06:12 pm (UTC)(link)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.
Re: I wish you were in the real world.
(Anonymous) 2008-05-28 06:14 pm (UTC)(link)The majority of creative individuals do not make large sums of
money. The large corporations, libraries, museums, and the like that
are attempting to have this bill passed hold the position that
national treasures are being lost because the creator cannot be
found. This could not be further from the truth. There is a great
amount of art available for use and many times the compensation asked
is minimal.
The term "Reasonable Compensation" opens the door for a significant
amount of litigation. Highly qualified individuals disagree on
what "reasonable compensation" would be on any given license. Daily
our firm works with licenses and knows the complexity that goes into
them. It is impossible to determine the value of a license without
having the license actually go to full term. Allowing an infringer
to only pay "reasonable compensation" would require an artist to wait
for compensation and then would limit his or her abilities to exploit
the art, as the art is already in use in public. For example, an
infringing use of artwork on textiles would prevent the rightful
owner from entering into a potentially far more profitable exclusive
licensing arrangement with a manufacturer of his/her choice.
It is true in the realm of merchandising that you only get "one shot"
at the public. The artist's right to fair compensation and further
exploitation would be ruined. In this scenario, the artist would
only be able to be compensation for the use and not the loss of the
art's exploitation value. Even personal injury victims are allowed
some type of future or speculative damages, but creators of art would
not be permitted such rights.
Litigation is expensive. Many artists are only able to bring such
cases forward because of contingency arrangements made with a law
firm. This type of litigation has not over burdened the court system
nor has it been shown to be abused. This type of litigation permits
an injured person his or her day in court. This Bill would remove
such an opportunity. Not only would it remove any financial
incentive for attorneys and artists to work together, it would also
make it almost impossible to bring a case forward because of the
heavy financial requirements placed on the artist. The financial
(and technical) requirements of this Bill truly assume that an artist
is "guilty of failing to comply until proven innocent" instead of the
reverse.
Works Based on the Infringed Art
The most appalling and morally outrageous part of this Bill pertains
to the registration of new works created from the infringed upon work
and the prohibition of the injunctive relief if a work"…. integrates
the infringed work with a significant amount of the infringer's
original expression." The US Courts have never adopted a bright
line test in regards to the changes of an original work in order for
the new work not to be an infringer of the old. This bill suggests
that there is a rule for changing an existing work and making it a
new work, yet it fails to state the exact rule.
Failing to specify a rule creates legal havoc. Not only does it
create legal havoc, it causes substantial confusion to the public and
requires significant money to be spent in order for a judicial body
to determine what is a "significant amount."
Thieves are not allowed to keep the stolen property, but this Bill
would allow infringers to steal work and call it their own. Mistakes
happen and innocent infringement occurs. However, an artist loses
twice under the proposed bill. An artist loses money and future
opportunity when the work is stolen. The artist loses a second time
when the infringer is allowed to register the work and then claim it
as "new" which creates commercial value. Once again, a criminal
can't be tried twice for the same crime, but this Bill permits a
victim to lose twice from a crime.
International Implications
The global marketplace will become even more difficult to navigate
because of this bill. International Artists' rights will be greatly
compromised here in the US. This invites sanctions under the World
Trade Organization Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS).
Re: I wish you were in the real world.
(Anonymous) 2008-05-28 06:15 pm (UTC)(link)for orphan works and ship the merchandising containing an infringing
work to a Berne Convention country, the manufacturer could face stiff
penalties for infringement as the Berne Convention does not recognize
such a term as "orphan works" and states that copyright ownership is
free from formality. The Berne Convention gives US Citizens the
rights to protect their work in other countries, but this bill would
mean that US Citizens may not be able to protect his or her own
rights in their homeland if "formalities" were not followed.
Everyday Application
This Bill will take the copyright registration and enforcement out
of the hands of the individual artists and place them squarely in
attorneys' hands. It establishes systems to determine what is fair
and what is reasonable in a field where individual facts and
situations dictate the outcome, thus making "bright line" rule
burdensome and unfair. The windfall for the legal profession will
come at the cost of untold artists whose works will be free for the
taking. Citizens will no longer be able to register their own
copyrights without significant expertise or expense, and in fact this
Bill essentially states that copyright registration is not sufficient
to protect one's work. This Bill takes a piece of the government out
of the citizens' hands and places it in the hands of a select few.
68% of all Americans say that this nation is in a recession. The
nation is at war against terrorism. Untold millions of American's
are without jobs. The need for this type of Bill that would take
opportunities for the average American to make a living is shocking
and beyond comprehension. National Treasures are not going unused,
but large corporate interests are trying to get to items that they
couldn't use thus far, so that profits can be reaped. It's about
the economy and not copyrights. It's time to get back to the
problems facing the nation and move forward to creating a fair
economy for all.
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.
It was a lonely search. by Lloyd Shugart
(Anonymous) 2008-06-03 06:07 pm (UTC)(link)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."
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