Emily (foresthouse) wrote,

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Copyright and Orphan Works: Once More, With Footnotes?*

Yes, yes, I know. Another post on orphan works. But another question/issue was raised and so I figured I would go ahead and address it. I find this stuff interesting. Feel free to scroll away if you just don't care. :)

(FYI: Post 1 and Post 2 on this issue.)

...Man, I think I need an icon just for this stuff.


The issue this time is concern over the potential for visual works to be considered "orphaned" even when they're not. This came up in this discussion in comments here. In short, visual media folks are concerned about the orphan works concept because it's harder to use a defined set of search criteria (i.e. a phrase or title or author) on something like an unattributed photo. Thus, there is a less clear standard of "reasonableness" regarding whatever search has been done.

The portion of my comment on sonnyliew's journal that isn't from my previous entry follows:

"I realize there is more potential for abuse with visual works as opposed to things with words, because the search terms are less finite and/or agreed upon by all. However, that potential for abuse already exists - photos/images are already harder to locate information for. One thing to consider is that the Copyright Office recommends consideration of infringement on a "case-by-case" basis - i.e. a judge will decide the issue of reasonableness. If there *is* a photo database, and the infringing user didn't search it, the case might end there - the artist wins, the infringer doesn't get the limitation on remedies. Even if the infringing user checked the Copyright Office records and prominent databases, if there are other obvious places the user failed to check (a Google image search, a search for any name or title on the photo, inquiring about the photo from whereever he/she originally found it, etc.) the search may STILL not be found to be reasonable.

One good thing about published visual works is that they have to have originated somewhere that allowed the user to easily copy them. If the infringer has a copy of a photo or image, where did he/she get it? A book or magazine? There's probably a credit somewhere in the book or magazine, and the infringing user would certainly be on notice that this visual work had some commercial value. An art gallery postcard? Same. A website? There may not be attribution there. However, did he or she ask the person on the site where it came from? Did that person have an answer? The creator may have been found, just like that. Or, if the site owner got it from another site without any idea where it came from, the next logical place of inquiry may have been found (and another infringing user located). It seems unlikely to me that a court would consider a search "reasonable" if the infringing user had failed to conduct a more-than-perfunctory search of some sort based on where he or she got the image in the first place.

Yes, the court may look at whether the work was available for search in databases - but if there are other ways to find it, and the creator can rebut the infringing user's argument of a reasonable search by showing those other easy ways, the search would likely not be considered reasonable.

I talked in my paper about the potential for abuse - I very much understand it is there. I think that the more "reasonableness" guidelines the law can provide, the better. But in the end, following the basic guidelines could be looked at as a threshold requirement - i.e. if the infringing user hasn't met them, he/she can't even move on to other considerations of reasonableness."


OK, now once again I'm going to pull from my paper, specifically the portion on

Fear of Abuse and Clarification of Standards

If the Copyright Office’s proposal is implemented, it would seem that certain clarifications would need to be made, including more precise standards for the meaning of a “reasonably diligent search.” The Copyright Office noted that when it asked commenters to advise on whether it should have the authority to enact formal, binding guidelines for a reasonably diligent search, it was “surprised to hear that most user groups – whom [it] thought would desire more certain rules for searches – opposed the Copyright Office issuing rules related to search criteria.” The Copyright Office cited its desire for flexibility in the search process to explain why it followed this advice.

Regardless of whether the Copyright Office itself issues regulations, the current standard of “reasonably diligent search” may be a bit too flexible. At least some sectors of the entertainment industry are strongly concerned with the potential for abuse if this amendment is enacted. Visual arts groups are particularly against the amendment as it stands, since a visual piece such as a photograph or an illustration is often less likely to contain copyright information right on the actual work, and may also be harder to locate due to the difficulty in describing the image precisely. The Stock Artists’ Alliance presented written testimony to the U.S House of Representatives' Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual Property stating, “We believe the possibilities for abuse of this statute are considerable and that such misuses would have a severe negative impact on our businesses and on those of our photo buyers.” The report by the Copyright Office acknowledges this danger, but the Office felt that the requirements of “good faith” as well as “a reasonable degree of diligence” would help to protect against such abuse. It also felt that the requirement of attribution would help with this problem.

Despite the Copyright Office’s attempts to include safeguards within the amendment, the visual artists and other concerned groups may have a point. Judicial determinations of whether a search was reasonably diligent without there being some specific standards for the courts to look to could result in a wide range of decisions in each industry setting, which would do little to negate the uncertainty currently inherent in the use of an orphan work. Without at least some baseline requirements, two people or organizations could vary on what a reasonably diligent search is, possibly leading to infringement where the copyright owner could have been located.

A perfect illustration of this problem comes from James A. Perkins, a medical illustrator and professor at the Rochester Institute of Technology. In his comment to the Copyright Office, he described his search for the copyright owner of the works of Roger Hayward, the illustrator of several books by famed chemist Linus Pauling. Perkins wanted to use some of these illustrations, so he contacted the publisher of Pauling’s books and was informed that Hayward retained copyright ownership of his drawings, but the publisher did not know his whereabouts. Perkins also learned that several other institutions, including the Rights and Permissions Editor at Sky and Telescope magazine and the Oregon State University Library had been searching for Hayward but had not succeeded in locating him. The Oregon State University Library had apparently gone ahead and posted many of Hayward’s drawings on the Internet as part of an online exhibit on Pauling. Although Perkins could have assumed that both other entities had done a thorough search and the information just wasn’t available, he decided to continue his quest for the information. He discovered that Hayward had died in 1979 and that his wife had inherited his estate and died in 1983, after which his estate passed to nieces and nephews. After “a few more hours of searching the Internet,” Perkins found and contacted the surviving heirs. He then emailed one of them and received written permission to use Hayward’s work.

This story shows the problem inherent in determining whether a search was adequate. Oregon State University Library apparently felt that contacting the publisher was an adequate search, and went ahead and used Hayward’s work without going further to find out if it was protected. Professor Perkins, on the other hand, felt that further search was necessary, and discovered the copyright owners in “a matter of hours.” In a situation like this, the lack of baseline search standards to guide individuals and institutions means that they may not know whether an Oregon State University or a Professor Perkins interpretation of a reasonably diligent search was correct.

While courts can begin to develop standards on a case-by-case basis, having guidelines in place already could substantially reduce uncertainty. One way to do this while still maintaining flexibility would be by having each industry (i.e. sound recordings, photographs and/or visual arts, literary works, etc.) develop a separate checklist of minimum search steps that a user must take when trying to find a copyright owner. This approach would be in line with current copyright law, which has a long tradition of regulating different industries or types of works according to their nature. It would also allow each set of search criteria to be tailored to the needs and character of the particular industry. Commentators may say that a danger in promulgating specific regulations like these is that users may stop their search after performing only the outlined and mandated steps. However, by having the outlined steps function as merely a threshold requirement in order to even reach the next step of whether the search was “reasonable,” this danger would be very low. Another potential difficulty with this proposal is that, while some industries may find it easy to develop a list of search requirements because they have established databases and searchable resources that would be a logical first step for a search, other industries may have difficulties in coming up with uniform requirements. Nevertheless, including these regulations would result in at least a somewhat higher standard of protection and certainty, and industries could work individually to develop regulations that were crafted to fit their specific issues.

Just for fun, let's give finding the creator of a published image on the internet a trial run to see how a reasonable search might work. I'm just going to pick some search terms and see where they lead.

Search Term 1: "Weird Art"

OK. Weird art brings up this Google image page

Let's say I like the image here.

OK, this one's easy. I have the name of the artist (Leah Saulnier), and her website. The artist has an email address on her site, by which she may be contacted and asked for permission to use the work. Piece of cake.

Let's try again:

Search Term 2: "something wicked"

The search brings up this page.

I really like these pictures of clouds. This is a blogger, who took a picture of a storm coming in. Clicking on view profile gets me to her profile, where she lists her webpage. Following that link gives what I presume to be the photographer's name, as well as contact info. Ta-da.

Different situation: Flickr.

Let's try the site that apparently causes so much alarm to Mark Simon: Flickr.

OK. I want to find a neat rainy day photo. I'll use their search function.

I've got choices!

This is an awesome photo and I want to use it.

The photographer has a profile, which lists a website. It also gives the photographer's name. Oh no! I don't see an email address! But look! Flickr has a mail function, so if you are signed in you could email him through Flickr. Hooray! Even if you don't know that, or can't find the guy's email address, the point is that the work is not orphaned. A 5 minute search has found you a creator. Ta-da!

I'm not saying this always works. I'd also be glad to try searches for any pics that don't, on first glance, have a creator. Feel free to suggest some.

* And speaking of attributions, "Once More with Footnotes" is the title of a collection of essays re: Terry Pratchett. Just so you know.
Tags: copyright, law, the internet iz serius biznes

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