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Copyright and Orphan Works: Why the sudden panic? - Walking on the Edge
I don't really have a plan...
Copyright and Orphan Works: Why the sudden panic?
Via cleolinda's last post (which links to discussions by ursulav, kynn, and maradydd), I've learned that suddenly, out of nowhere, people are getting all het up about the Orphan Works issue. Which is surprising, considering the last big governmental consideration of the issue was in 2006, until you realize that some guy named Mark Simon over at Animation World Magazine (AWM) has posted an inaccurate and alarmist article about the issue. He's gotten almost everything wrong, including the definition of an orphan work. Well done, mister.


Some notes on the AWM article:

- The Copyright Office defines orphan works as "copyrighted works whose owners may be impossible to identify and locate," (Copyright Office 2006 Report on Orphan Works), NOT as "any creative work of art where the artist or copyright owner has released their copyright, whether on purpose, by passage of time, or by lack of proper registration." (Mark Simon)

- It *is* against international law (the Berne Convention, for one, which the U.S. acceded to in 1988-89) to require formalities such as registration. However, I have seen NO indication anywhere that the U.S. Copyright Office or legislators are proposing to withdraw from the Berne Convention requirements (and other international requirements, such as TRIPS, etc.) and require registration (as Mark Simon insists). As a matter of fact, the Copyright Office, in its massive report on this issue in 2006, specifically noted that it would not (and could not) do this (see, pp. 60-61).

- There is no way in the entire universe that the following will occur:

"Photos on the internet could be orphaned. With tens of millions of photos shared online with services like Flickr, Shutterfly and Snapfish, there is a huge opportunity for unauthorized use of your photos... legally.

You could see photos you take of your family and kids, or of a family vacation, used in a magazine or newspaper without your permission or payment to you." (Mark Simon)

You know why? Because in any case where the author of a work can be identified, the work is NOT orphaned. So, you know, if you have a Flickr account, and someone wants to use a photo of yours that's on Flickr, legally, in order to avoid potential infringement and possible litigation, they have to ask you. And you can say NO! What a novel concept that has been around for many, many years. *rolls eyes at Mark Simon*

I should observe here that, yes, you could see your photos used in an unauthorized manner - but that is the case even today. The remedy is, as always, to negotiate with and/or sue the folks who do it to enforce your rights.

maradydd has a few more good notes on the article.

(Small correction on her examples: actually, you could donate the described old photos to your local library. But whether they could copy them or not would trigger the orphan works issue.)


After perusing this article I made a valiant attempt to find the legislation to which Mr. Mark Simon refers. Sadly, I was unable to locate it. I did, however, find an official statement from The Register of Copyrights (dated March 13, 2008), which explained that the 2006 proposed legislation on Orphan Works is still being considered and discussed. The statement notes several new aspects of the issue that have been raised since 2006, but doesn't say anything like what this guy is screaming about in his article. I have no idea where he got his information from, since he didn't provide a link or anything, and I'm pretty sure "his own head" would actually be the place from whence all of this came. The Illustrator's Partnership, which he links to, references a "new bill" that will be proposed in May, but from the Copyright Office statement, it seems likely that this is the same bill that was proposed in 2006, with perhaps some modifications along the lines of those noted in the statement.

So in other words, to bastardize Terry Pratchett, (who was quoting someone else anyway, I believe), "Here comes the new bill, same as the old bill."


I commented on the article, asking for a link to the supposed "bill."


In a serendipitous occurrence, it just so happens that when I took the Advanced Entertainment Law seminar my third year of law school, my semester project was a paper on none other than orphan works, and the 2006 proposed legislation. So if you are at all interested in an accurate, researched-and-footnoted, largely unbiased (I hope), in-depth examination of the legal issue as it stood in 2006:

Here's my paper

(ETA: I also found my Excel chart on the duration of copyrights for various types of works, in case anyone's interested)

Yes, it's over 40 pages long. It was a semester-long project. But really, if you are actually interested, it's worth reading. Also, my professor was heavily interested in this stuff (and used to work for the Copyright Office), and he gave me an A on this thing. So I'm fairly sure if it was wildly inaccurate or anything, I would have been told.

As far as I know, the only current updates to the proposal would be what was briefly outlined in the recent Copyright Office statement I linked above.


I can do another post clarifying things if anyone has specific questions, but for now, I must run!

ETA: I have posted again, specifically on the details of the Copyright Office's 2006 proposed legislation/solution. Hopefully it will help clarify things, especially the whole issue of potential "mandatory registries."

ETA the Second: And a third post, this one focusing on a "reasonable search," particularly for visual arts.

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dgenerator From: dgenerator Date: April 14th, 2008 03:29 am (UTC) (current file)
It's a good time for apocryphal horror stories, I think. I knew on the face of it that this supposed 'bill' was a load of bullshit. I just didn't know where to look to prove it.
foresthouse From: foresthouse Date: April 14th, 2008 07:37 am (UTC) (current file)
And here I am with all the info! Hee. Yeah, it's like, INTERNETZ, PANIC! Except this time at least everyone but this one guy is all, "Whatevr, dude. Shut it."
cleolinda From: cleolinda Date: April 14th, 2008 03:39 am (UTC) (current file)
What just kills me is how hysterical people are getting over it. So thanks for talking about it some--it's funny, because when people actually hear what it's really about, they start to think it might be a good idea.
foresthouse From: foresthouse Date: April 14th, 2008 07:38 am (UTC) (current file)
Yeah, there are actually some good ideas that have come out of the discussions, as I discuss in the paper (which I might try to summarize parts of later). And you know I'm strongly in favor of protecting copyrights, so it's not like I'd be cavalier about new legislation.
sucrelefey From: sucrelefey Date: April 14th, 2008 07:50 pm (UTC) (current file)
Now I love our orphan works legislation all the more and its ruthless in its qualifiers.
arshes From: arshes Date: April 19th, 2008 02:23 pm (UTC) (current file)

Actually I have a few questions - split into several posts due to character limit on LJ replies.

I'm an artist and I've been looking into the issue myself and understanding copyright law for quite a while (well years now) mainly because I wanted to run a small business that sells character goods...like a Sanrio (Hello Kitty).

After reading the statement posted in 2008 and looking at Canada's website on how they deal with Orphan Works, I do have a few questions.

I actually like Canada's Model for approaching Orphan Works and I wonder if the US is actually going to go through a similar process.

I think what has people scared is who will take upon the burden of proving the work is Orphan, or at least granting a license that qualifies under the bill.

In Canada's approach the person must provide evidence (of the search and reasons they want to use the work) first, and it is reviewed before a panel. The panel then grants or denies the license and has the person leave a deposit for so that it displays the person is acting in good faith. If the copyright owner shows up, it is now on record who is using the work so that arbitration of "reasonable compensation" can begin.

Will the US be following this manner of approach in that order outlined above? This order will keep the people (who are already rather ignorant of copyright laws) from assuming the Orphan Works defense will be used after the fact infringement has occured. I believe it should be the Copyright Office or a panel of judges (someone in our government offices QUALIFIED) to define what works constitute as Orphan before usage is granted under a compulsory license.

...to be continued...
arshes From: arshes Date: April 19th, 2008 02:29 pm (UTC) (current file)

Re: Actually I have a few questions - split into several posts due to character limit on LJ replies.

I really don't see too many loopholes people have applied but I'd like to see your thoughts on this, and see if these are scenarios could be possible

Al Gore wants to do a documentary on Global Warming. He finds a really cool picture he'd like to use as background as he delivers commentary about how Global Warming is going to destroy us. He can't find who legally owns the copyright. Since Al Gore "invented the internet" he does numerous searches online and through various organizations such as GAG or even IPA to find the owner. After a long search which would entail months, he pleads his case before Copyright about usage. Board looks at Gore's documented searches, finds he's diligent and gives him the go ahead.

Well the artist who couldn't be found sees the documentary and realizes "hey he's using my image"

Gore is contacted and arbitration begins as they look at various market values for the work. Artist is paid. However, artist is upset for another reason: he feels the usage of his work meant also supporting Gore's ideas. He can't sue for statutory damages because he feels his work was used against his ideals or morals. So in that, it creates something of a "loophole" for compensation

However, artist would be able to order a cease and desist and orders no more usage of his artwork. So, Mr Gore has to do another internet search to replace the image and redo the audio for commentaries.

You can correct me if my scenario is wrong but I'd like to see if that's a possibility.

The other question I have or scenario is that. Joe Blow gets an approval (if we use Canada's model) on using an Orphan work, he leaves a deposit and works on the film. Film is completed and distributed. Then the copyright owner shows up. Joe Blow dies around the time of arbitration. Who would be responsible for the "reasonable compensation" I know that most debts are usually defaulted to the estate of whoever inherits the deceased's properties by will or court appointed arbitration. However, it can be seen as a problem if not outlined in the Orphan Works bill.

My other question is, can someone who used an Orphan Works in their work can then sell or transfer ownership to another party. If so, who would have to be the bearer of reasonable compensation? Also, is this even possible from your understanding of the last bill and proposal? If so, say that the original "Reasonable Compensation" amount was dependent upon the circulation numbers. If a new party distributes it with a larger circulation, wouldn't the owner of the Orphan work be entitled to compensation based upon the largest circulation?

I'd very much Prefer we used Canada's model (as applicable as possible) for the Orphan Works bill as it seems rather organized and people can't use "Orphan Work" as a defense after the fact (despite legal language saying he/she has to pay when copyright owner shows up. I actually don't mind the bill but I do think the order of which an Orphan Work is determined and by who is very important.

Thank you for your time if you do answer this.
foresthouse From: foresthouse Date: April 20th, 2008 04:05 am (UTC) (current file)

Re: Actually I have a few questions - split into several posts due to character limit on LJ replies.

I've also addressed the issue of moral rights (which relates to your Al Gore scenario), at least briefly, in my next post. The U.S. copyright law is founded in an encouragement of the arts and sciences for the public good, not in the moral right of the author to control his/her work. So that argument is not as strong in U.S. law as in some other countries. However, there are often forms of injunctive relief available, depending on the situation, that could make someone stop using the work.

On your second question, offhand I would assume that the heirs of Joe's estate or whoever profits off of the use might be responsible, but I would probably have to look into it more. To the best of my recollection, that is not specifically addressed in the report, but generally, debts can extend past death of the debtor.

Are you saying can someone transfer their ownership of the right to use the work? Well, I believe if the use is discovered by the original creator before the user attempts to sell, then the settlement of the creator's right of compensation by a court would occur before the user sold, and the creator would not be able to sue each consecutive owner. If the user sells and then the creator files suit...I am not sure. However, one possibility under the principles of equity is that that the creator might be able to recover some percentage from the original user and some from the next user, which would combine to reach the point of "reasonable compensation."
foresthouse From: foresthouse Date: April 20th, 2008 03:55 am (UTC) (current file)

Re: Actually I have a few questions - split into several posts due to character limit on LJ replies.

Thanks for stopping by!

Well, first off, I'll admit I don't know that much about Canadian copyright law. :) But from what you've said, it's not quite the same as the 2006 proposed legislation. Whereas in Canada you have to present evidence of your search first and get the use approved, here the copyright owner would have to try to enforce their rights after discovering the use. THEN the user would have to prove there was a reasonable search, and a court would decide the outcome (sort of like the panel). The difference is, of course, in who has the first burden to raise the issue - user vs. copyright owner.

Second, right now there is no proposed bill before Congress, so there's no action being taken yet. However, there is a *rumor* that there will be legislation proposed come May. It appears from the Copyright Office's statement that this legislation will be based on the 2006 proposals.

To that end, I just made another post highlighting the portion of my paper that details the 2006 proposal and how it would apply.


Hopefully it is helpful. :)
(no subject) - fenris_lorsrai - Expand
foresthouse From: foresthouse Date: April 27th, 2008 07:59 pm (UTC) (current file)
Thanks for the FYI. :)

I'll be glad if people (authors/artists in particular) find this, because I think it's important for people who are going to be affected the most to know exactly what is actually being proposed, the pros and cons, etc. The more people understand, the more valuable comments or critisms can be made when new legislation is introduced. :)
From: studio413 Date: May 28th, 2008 08:49 pm (UTC) (current file)

Works of Art, are not Orphans...Children Are

See below title
Six Misconceptions About Orphaned Works

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


# 12 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
foresthouse From: foresthouse Date: May 28th, 2008 09:53 pm (UTC) (current file)

Re: Works of Art, are not Orphans...Children Are

Hi there,

I'm a bit confused about your comment - are you saying that I stated I'm not an attorney? I am an attorney, and am not, in point of fact, confused about the issues, having done extensive research on this subject. I have, naturally, stated that what I say in a general post should not be taken by anyone as personal legal advice, however.

What is the one commenter citing as the potentially unconstitutional part of the bill? I don't see any reference to an issue that would be found to be unconstitutional. Is there a specific example provided from whereever you got that statement?

Also, I think the letter you meant to post is truncated, so I can't read what points it's making.
From: studio413 Date: May 28th, 2008 11:41 pm (UTC) (current file)

Re: Works of Art, are not Orphans...Children Are

I just read the post it seems that some how the beginig of the post was not posted. Thatpart of the post was not at you, so much as at the topic, I was then copying from another post on the same subject and trying to link http://maradydd.livejournal.com/374886.html the 2 together.

Sorry for the confusion.


From: studio413 Date: May 28th, 2008 11:48 pm (UTC) (current file)

Re: Works of Art, are not Orphans...Children Are

here is the link to the post from the truncated attorny letter that is on point.....

it is attached reply 12 http://techdirt.com/articles/20080425/124144950.shtml#comments
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