The Orphan Works Act of 2008 and You
This isn’t Schoolhouse Rock, but there is a bill coming through the floor of both the U.S. House and Senate that you might should be aware of. It’s called the Orphan Works Act, a prospective law that hopes to help lawmakers and the copyright office figure out what to do with works when the originator cannot be found.
For a quick run down of what the bill implies, we’ll consult Open Congress:
“This bill would limit the amount of damages a copyright holder could collect from an infringer if the infringer performed a diligent search for the copyright holder before using their work. The goal of the legislation is to free up for reuse copyrighted works whose holders cannot be found. It would also set up a process for the Copyright Office to certify commercially-produced visual registries to help people locate the holder of a copyright and prevent the orphaning of works in the future.”
The potential law has been somewhat controversial, given the implications that it poses upon the online current state of affairs when Average Joes post photos and videos online every day. The current text of the bill(s) require that those seeking to use potentially orphaned works have to only make a “reasonable” effort in order to find the original authors of the work. No specific requirement is ever given as to what would be definable as such, which has some commentators worried that such a void will only be filled by future litigation.
So what does this mean to you? Imagine for example, that you’ve taken an awesome photo. A friend asks you for a copy of it, a request that you happily oblige to. That friend then posts the photo to an off kilter site such as Geocities in order to place it on their MySpace page. Months or perhaps years go by, and the photo is saved and redistributed by various means. You might later find that the killer photo you’d taken three or four years ago is now being used by some greasy start up as a basis for their website or print promotion. They’d be making profit off of your work, and if they could word their reasoning well enough to conclude that they made a “reasonable effort” to contact you, you’d have no basis for legal recourse.
This is only one possible scenario. The various means for posting material online only furthers the eventuality of others, all of which could find you having material mysteriously and quasi-legally claimed by others. So what can you do for now other than the cliched approach of contacting your congress person? Take care in what you post online and make sure that its properly attributed. A good example of great attribution is through the use of Creative Commons. Make a practice of it, because without placing your virtual John Hancock on your work, you may find yourself down crap creek later on if this bill passes.
1. Lloyd Shugart - May 30, 2008
There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught.
The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass.
Lloyd Shugart
Unintended victim
Tammy,
full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/
I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.
I am the POSTER CHILD for why this is bad for the copyright creators.
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 “ORPHAN 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 $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.
How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.
Propet USA v. Lloyd Shugart WD WA. Federal Court
Isn’t it funny that when the supposed problem is that there’s art out there that is not marked by the owner, the an$wer to the problem is - allow usage without payment. Wouldn’t the common sense answer have been to find a better solution to marking the IP in the first place? That’s never been even part of the discussion.
Besides, the companies that stand to profit from all this ‘ORPHANED WORK’ are REMOVING the information from files as we speak. That certainly isn’t doing anything to help eliminate the problem.
Funnier still that the proponent$ of the bill stand to gain either thru the ownership of (supposedly) abandoned artwork or thru the money making developement of the databases (registries, which according to international law are illegal)and the resulting ad sales on said ‘databases’. (you mentioned the creative commons, but please note that on CC today, google is already making money from ad sales there). artists pay to register, infringers pay to steal, if you want something bad enough, there’s going to be a way to get your “diligent search” (which is still with out any real criteria) without finding even a known creator.
If you look at google, MS (thru associations with Picscout,Corbis,Greenlight,Flickr and others) they are all already involved in the sale of images. Images which didn’t cost them a cent to create, they only have the investment in the developement of the site. The actual creators - oh well.
Greenlight’s new ad’s also promising to ‘INDEMNIFY’ anyone that uses them to do their searches, so even if the creator could normally recoup some legal fees, do you have enough pocket cash to take GOOGLE or Microsoft to court? And anyone caught infringing will definitely bluff if they did no search…the artists will still have the burden of proof and the ever decreasing chance of recouping their legal fees.
These same companies are so certain of their impending victory, they are already advertising the services for the orphan works - which do not even legally exist at this particular time. (6/30/08) Their trail of money is easy enough to follow - look at the contributors to financial campaigns and you can see why they are so assured and why arists are so concerned. When people can buy legislation, there is no law.
This is about greed and avarice. nothing more. today, intellectual property, tomorrow property?
Val