Late yesterday afternoon, Lamar Smith (R-TX), Chair of the House Subcommittee on Court, Internet and Intellectual Property introduced HR 5439, the Orphan Works Act of 2006. The bill, which seeks to limit liability for artists, educators and others who make a “reasonably diligent search” to find a copyright holder but cannot, is a significant improvement over the draft bill proposed by the Copyright Office in February. Here are some of the changes we like:
It prohibits injunctions when the user of an orphan work “recasts, transforms, adapts or integrates the [orphan] work with the [user’s] original expression in a new work of authorship….” This ensures that the publication of transformative works that may include the entirety of an orphan work will not be able to be stopped by a court.
It requires the Copyright Office to make available information that will help users understand what might constitute a reasonably diligent search.
The bill makes clear that in determining the “reasonable compensation” an orphan works user must pay should the orphan works owner reappear, the owner has the burden of establishing the amount that a willing buyer and willing seller would have agreed to.
The bill eliminates a provision that would have required the rules to sunset after 5 years.
While we would have preferred a cap on damages as opposed to “reasonable compensation,” it has been clear from the very beginning that such a change was a political non-starter. However, we would like a little more certainty that “reasonable compensation” will not lead to a great financial liability for the user. We’ll be asking for some report language that makes it clearer that the monetary value of an orphan work, particularly one that has been out of circulation for a long time, is low, if not zero.
We also would have liked the “safe harbor,” which prohibits any payment if a user immediately ceases using the orphan work when an owner reappears, to apply both to commercial and non-commercial uses. The concern here is that small artists who sell their works should be entitled to the same safe harbor as large museums and libraries. We understand that Congress members do not want to give this advantage to large users like Hollywood studios. We’ll be working on language that seeks to protect small artists.
This bill is on a fast track - it will be marked up by the Subcommittee this Wednesday. Stay tuned.
are you in your right mind?
are you in your right mind? because this is not right at all. you’re giving thieves an excuse. do you know how it feels after you work hard on something for dfays /weeks/months etc.. and you post it somewhere … and then someone just takes it ans says it’s his ?
Please describe how orphan
Please describe how orphan works policy gives “thieves an excuse,” because I think you misunderstand. If someone is a thief and doesn’t do a good faith reasonably diligent search to find the owner to ask permission to use the work, that user can be held fully liable for copyright infringement. No question.
If you create an image and post it somewhere, say like Flickr.com, and someone copies the image and reposts it somewhere else under their name, how does orphan works legislation impact this act of infringement? It doesn’t. The owner would have a claim of copyright infringement against that user. No question.
However, if a user, like a documentary filmmaker, searches for a work’s owner but cannot find him, this policy allows that filmmaker to use the work, with attribution. If the owner somehow resurfaces, that owner would then be compensated for the use of the work.
Where is the problem? Honest users get to use a work after a search, dishonest users remain unlawful, and owners get found and compensated.
Where is the problem? Allow
Where is the problem?
Allow me to enlighten you.
What if a documentary film maker is promoting a social commentary, political view, etc. I do not wish to have my work or my good name associated with, compensation or not. What if I created a portrait of a client and it was then used by a well meaning XXX film producer as a background image for his spectacular orgy scene? There is more at stake here than just “fair compensation” and “a good faith reasonably diligent search.” Once that film has been made and viewed, there is no going back. The damage is done. In some situations, no amount of fair compensation could remedy the situation.
While my heart does go out to honest hard working documentary film makers. There is nothing wrong with current copyright law. If you don’t have permission, you don’t use the works. Period.
Why does it need improved? The only reason I can think of (based on the way the law is written) is for some to profit unjustly from the works of others.
Snapshot3, of course I
Snapshot3, of course I respect your right to determine how your work is displayed and distributed, within the confines of US Copyright law. Beyond some specific limitations like fair use, the first amendment, and the fact that the US law doesn’t generally acknowledge moral rights, you’re right, as a creator of a photographic work, you generally would have the right to limit a follow-on user from distributing your work or making a derivative.
But let’s honestly consider your scenario of XXX film producers. “Well meaning” or not, are they going to be taking advantage of orphan works? In reality, what XXX film producers will bother to conduct a reasonably diligent search for your specific photo to include in their porno? It’s not worth their time and money researching it and they’re not going to bother. So, orphan works policy won’t protect illicit users like the XXX film producers in this case. If they didn’t do a reasonably diligent search, you could sue them for copyright infringement and get an injunction to stop their use.
If some XXX film producer decides to follow prescribed guidelines, spends the time and money to search for you because his or her pièce de résistance orgy scene wouldn’t be complete without your photo in the background, he or she is going to find you.
However, the overwhelming use of orphan works policy will be by documentary and independent filmmakers, libraries, book publishers, museums, and archivists. While the example of the XXX film producer is hypothetical, the real world concerns evidenced by Karen Coe of the U.S. Holocaust Memorial Museum at the March 13th Congressional hearing of the museum’s inability to display photos from WWII or from Darfur are real.
As an artist and copyright holder, you can appreciate how current copyright law holds back these culturally and societally positive uses. Should we continue to allow this because of some boogyman pornographer?
Of course very few XXX
Of course very few XXX producers are going to take advantage of the law. But as the proposed law was presented in committee on at least one occasion, there would have been very little effort needed to “find me”. In fact they only need to show reasonable diligence …. they do not have to actually find me or my heirs. However, if I or my heirs or assigns need to address recourse, I DO actually have to find those who used my work without permission. An injunction, well after the fact, is of little or no use. Difficult to put the toothpaste back in the tube. You can twist my example in any manner you wish and compare it to reality or fiction if you like. That will not change the fact that this proposed law will be abused on a regular basis for “the common good”. Yet there will be little effort to police the area, except for those who actually hold the copyright. While the proposed legislation may guarantee me “fair compensation” if I am never made aware of the use, how am I to collect?
“As an artist and copyright holder, you can appreciate how current copyright law holds back these culturally and societally positive uses. Should we continue to allow this because of some boogyman pornographer?”
I can sympathize with the museum in question. Are we to abandon our copyrights so as to advance the culture and society just so a museum may avoid the inconvenience to search out the copyright holder? Very lofty ideals of course, but as you indicate, not very effective in the “real world” If you are so concerned with the cultural and social issues of not being able to display orphaned works, then ONLY allow museums to use the orphaned works clause and NOT John Q. Public. Documentary and independent filmmakers are not volunteering their efforts, they are out to earn a profit, and rightly so. If there is no method to earn a profit from the use of orphaned works, the likelihood of abuse will be drastically reduced.
“However, the overwhelming use of orphan works policy will be by documentary and independent filmmakers, libraries, book publishers, museums, and archivists.”
You know this for a fact? Or is it your assumption? When Corbis, Getty, Google and others are sending lobbyists to negotiate on the wording of this proposed law, which they indicate they want to see passed …. they are not there to represent the interests of libraries, museums and archivists. They are protecting THEIR interests to make a profit. Period.
I am not condemning the ideals represented for the desire to modify the current copyright law to benefit entities such as museums, although at times it may be difficult to muster up sympathy for institutions whose budgets are in the tens, if not hundreds of millions of dollars. However, there is a need to use great care in how it is done, boogyman photographer notwithstanding.
Snapshot, thanks for this
Snapshot, thanks for this back and forth, I think it’s useful and hopefully you do to.
Sorry to pick out a specific quote from your argument, but I think it’s illustrative:
My question is, how is today’s copyright law any different with respect to the above points? If someone illicitly infringes upon your copyright, your recourse is to sue and get an injunction against their use (and if you registered, maybe hefty damages). If someone infringes your copyright today, as you say, the toothpaste is already out of the tube—there are no legal remedies available before the infringement occurs. And, even today, you may not even know about it. A “reasonably diligent search” standard combined with stacks of guidelines that users would have to follow, are hardly little effort. Go back to the U.S. Senate hearing from 2006 from June Cross and listen to her statements about what she does, above and beyond to make sure the owners of the works she’s looking for can found. Maybe I’m just being hard headed, but I just don’t see how orphan works would make these problem worse for photographers. If anything, we’re trying to create solutions to address photographers’ problems of not being found (see below).
The point about what users will take advantage of orphan works is pretty clear. They’re the ones who initially asked for this policy. They are the ones who have shown up to all of those hearings and proceedings. I think it’s not right to assume that some sort of bad actor is going to be able to take advantage of this orphan works policy—thieves are thieves, only in Hollywood movies do they bother dancing the fine line of narrow legal exceptions—like this orphan works policy. Have you had someone infringe your work and claimed some sort of exception that a court couldn’t have easily seen through? People have rolled out the Chinese counterfeiter boogyman, but rarely do those boogymen claim any legal exceptions like fair use—because they know a court wouldn’t buy it, so they don’t bother.
The point about Corbis, Getty, Google et al is an interesting one, and I’m curious if you actually know what language they’re trying to negotiate. If they are on the Hill (and personally I don’t think they’re very active on the orphan works issue—because I’ve been trying to get them to be more active), they are there to talk about the proposed visual registries and how their services will need to be modified or newly architected to fit within any requirements that the bill might specify. They are just some of the likely companies who will be building the technology that the government and Copyright Office have failed to provide you as a visual artist and the public as a searchable resource. I would think that photographers would want these kinds of resources available to them, to help their images to be found and make sure that ownership is properly assigned.
Art theft is a common
Art theft is a common business now, under the stricter laws. To give the theives the protection that seems to be provided by the removal of the penalities currently in place, doesn’t seem to do much to deter theft. Almost all artists that license their artwork are already dealing with some amount of unauthorized use as is.
What constitutes making the required search? and why should I be forced to register EVERY single piece of artwork that I create in order to keep someone from using it without permission? I wouldn’t have time to create artwork if I am stuck trying to answer every inquiry (If I fail to do so, it’s liable to be considered orphaned) and track down all the art that is used without permission and show up in court(I couldn’t pay for all of the above more than likely anyhow with the reduced penalties).
Honestly, if applied to your car or your home, would you want to operate under the same type of regulations the current orphan works acts is proposing?
Val0rie, Thanks for the
Val0rie,
Thanks for the comment, let me try to address your questions…
Orphan works doesn’t apply to thieves, it would only apply to those who put in diligent effort to their searches. If you exist, users are going to find you. Thieves don’t bother to do searches, they just steal—and for that you can take them to court for the full damages implied in copyright infringement—up to $150,000 per work.
There’s no further requirement to register anything. If you want to put some effort into making sure potential users can find you, then you could register, and maybe even upload your work to a visual registry. This would help a user find your work when they search for it, and then they could ask your permission to use the work and maybe even license it. But whether or not you register your work at the Copyright Office, or in one of these new registries doesn’t change before or after this bill—except that you’re helping out society by making sure you can be found.
And in the real world, with real property, the law favors exploitation of resources as opposed to waste. We have adverse possession and squatters rights when owners abandon their property that encourage owners to maintain their property. But under orphan works, owners aren’t giving up rights because a user would have to pay the owner in the unlikely event they emerge after a diligent search.
My artwork is “real
My artwork is “real property” and it in reality, supports my 6 year old daughter and I. Not in grand style by any means, but we are existing, thanks in great part to the sale/licensing of my art & illustrations. I don’t want my child to go hungry so that someone can use my art for free in a way which I already object to.
If someone takes this “real property” and uses it after being unable to find me for whatever reason, and I license this with an existing client or company because I don’t know that I have not been located by the “diligent” searcher, I am liable to be taken to court for breech of the legitimate contract entered into by my well meaning self and my unsuspecting client.
I will have now lost my own rights to use my own artwork for the purpose of licensing to most or all manufacturers/individuals. What about the rights of the purchaser that negotiated for and bought and paid for the artwork? Sounds like he/she loses too.
There is no way to compensate myself or my client (who may well have expended a good deal of money to manufacture a product expecting the exclusivity in the market place which contracted)for rights which I cannot control.
What you seem to be saying, is that someone who uses my work without my permission, has greater rights to my property than I do. With no clearly defined criteria for “diligence” in regard to the search, I would like to point out that almost any effort could be construed as “diligent” whether it is so or not.
I have never “abandoned” any of my artwork nor do I anticipate doing so, but it seems that due to the sale or marketing of products and my clients advertising which they pay for, which could make the search a rather convoluted affair, I can loose my rights to my own artwork and my livelihood. Not much incentive to share with anyone in that case.
I would also like to mention that used in this manner I have no control over the use of my artwork if used in a way that is objectional. (the toothpaste is out of the tube after all) No amount of money can compensate for that eventuality and the number that you mentioned (up to $150,000 per work) is not part of the proposed legislation as far as I know (it is only part of the current, existing laws). In fact the OW seeks to intentionally limit the penalty so that people will be less hesitant to use other people’s artwork.
I really feel that I should be allowed to limit who uses my artwork. If they can’t contact me, they shouldn’t be allowed to use the artwork because otherwise they rob me of my own rights to sell/license the art and support my family. Please explain to my child, why someone else should profit from my work at our expense.
There is something missing
There is something missing in the argument in support of this legislation. I am an attorney, and represent many artists in the attempt to protect their work. First, the name of the legislation is a misnomer. It is not “orphaned” work, in which the parent or creator gave up or abandoned the right to the work; it is work for which the copyright owner cannot “diligently” be found.
Second, I am not sure I understand the public need for this legislation. Is it really necessary for the public to have greater access to work that belongs to another? It is interesting to understand who supports this bill. Is it really Google, Corbis, and Getty? This should give some indication as who thinks they will benefit from passage. There already is a fair use provision in the Copyright Act that allows the fair use of copyrighted work for educational purposes.
Third, under the present law, a copyright infringement lawsuit is not an easy process for the claimant. The courts have made it difficult to be successful, and creators already have a difficult burden of proof. If this law is passed, anyone who is found to have used a work without authorization will claim that they “diligently” searched for the creator, adding another hurdle for the creator to overcome in order to protect his/her work.
Fourth, the consequence is that much of the dispute as to unauthorized use will be surrounding a “diligent” search. And what is a “diligent” search? Who knows? If I see an image, or a writing, how do I search the origin? If you exist, users are going to find you? It is not so easy in real life. In adverse possession and squatters rights, at least the name of the owner of the land is easily obtained.
And finally, again, what is the real public benefit for this legislation?
Val0rie, My apologies.
Val0rie,
My apologies. When I said “real property,” I meant the legal “real property,” as in land or a house, as opposed to your copyright, which is legally different. I was referring to the distinction you made in your previous post. I don’t mean to insinuate that your works are not real or not based in reality. Sorry for any miscommunication.
Of course, I respect your property and so would users of orphan works—if they didn’t, they would just be stealing your work. This whole debate, the 20 pages of legislation, are crafted around protecting your rights as a creator and trying to address every issue from every angle.
This bill is written for the “what if” scenario. The cases that libraries, archives, museums, and independent and documentary film makers are talking about, they’re of works where the owner cannot be found. No matter how hard they try, the person or company who owned the work doesn’t exist any more. If you exist, you’re going to be found because these people want to find you to ask you permission to use your work (and to compensate you). Remember, these users may be copyright owners, too. They respect rights.
How will you lose your rights? No rights are lost here. If a user does a search, they’re going to find you and ask your permission and license your work. If for some inexplicable reason they didn’t find you, the bill requires you to be compensated. If the person didn’t put diligent effort into their search, you may sue them as an infringer and get all the damages you’re entitled today.
Val0rie, I’m sorry but I think this is problem that you would have under current law. Forget orphan works. Someone today could use your work in a way you didn’t want, and the toothpaste would be out of the tube. If they used it unlawfully, your recourse would be to sue them. And if willful, you said $150,000 still may not be enough to compensate you. I’m sorry, but it’s that way today, whether or not orphan works legislation passed.
Of course you can. Today, you get to use your copyright to license the way your work is used. Do you register your copyrights or otherwise make it known who you are so that people know that they can license the work from you? If so, then any person who wants to use your work is going to find you. If you don’t put yourself out there, in an orphan works regime, when you discover someone is using your work, you then can license them for use of the work or tell them you don’t want it used anymore.
If someone uses your art work, you and your family will be compensated for it. I’m not sure how many other ways to say it, Val0rie.
But again, I think this is a good exchange and I thank you for going back and forth. I hope my comments made sense, if not, please reply.
Laurence, Thanks for your
Laurence,
Thanks for your comment, hopefully you’ll be willing to participate in this dialogue.
For that, I would refer you to the Copyright Office’s 129 page report where comb through the 500-some comments from users who detailed their needs, that don’t within any other limitation of copyright, like fair use. How will Google, Corbis, and The J. Paul Getty Trust benefit from this legislation in ways that they don’t already use works today? At least from the Copyright Office report, Getty is one of a number of “Archives, libraries and museums maintain vast collections (in some cases, millions) of photographs, very few of which have any indication of who the author was.” Those images are locked away from public consumption, contrary to the mission of many of those institutions and, I would say, contrary to the progress of science and useful arts. I don’t know how Google and Corbis in particular would be benefiting from this legislation, at least, not any more than indy and doc film makers, libraries, archives, etc.
Have you read the bills? If anything, they make it easier because everything is up front—which should lower all costs of suit. The user/infringer must
assert the orphan works limitation in the initial pleading;
consent to US district court jurisdiction;
state with particularity the basis for the right to claim the limitations, including a detailed description and documentation of the search undertaken.
If anything, these are big targets on the backs of unlawful infringers in a court of law and will make it easier, perhaps even easier than a traditional infringement case, to determine whether someone is acting unlawfully. But in case that’s not enough, the bill anticipates your argument and goes even further by requiring the Copyright Office to conduct a study considering remedies for small copyright claims.
Great question. If you’ve been following this issue for any amount of time, you may have seen or attended the numerous hearings and roundtables where this issue has been discussed. Many groups, from both the owner and user communities, have said they already maintain guidelines for searches. Users will have to determine which standards are reasonable and appropriate to their circumstances, with the knowledge that if they don’t put in a diligent enough effort, that they’re potentially going to be on the hook for statutory damages of up to $150,000 per work. Some have suggested that these standards be codified or a formal minimum list be drafted by the Copyright Office. If that were the case, that would have the effect of creating a floor or minimum search, which may not have any bearing to the work, and would likely end up disproportionately harming the owner because searchers would reflexively only use the minimums, instead of actually putting the effort into trying to find the owner.
I am hoping this comment is facetious. But, I again refer you to the Copyright Office’s report which starts (on pg. 92) with the conclusion:
Don’t you see a public benefit in finding the owners of works?
I am a photographer and am
I am a photographer and am very much against this new law. First, for many artists/creators the risk is that it can be difficult to track down a piece of work, and that the law as it stands, where if they can’t find us, they can’t use it, is the best incentive/motivation to locate us down. I have had a pubisher use a set of my black and white prints that had my name and contact number stamped on the back in permanent ink in 1 inch type, and when i found them, I was told they had not been able to determine whose work it was and they could not track me down. And this is with current legislation and was before the web. Now what happens, many of the programs that prepare an image for the web strip out the embedded data which gives ones contact information. Though this is illegal, it is still the default setting on many programs.
Perhaps if this law began by addressing this problem, or if it did create a ‘floor’ to a minimum definition to diligent search, it might have more credibility as a greater safeguard, but it does neither of these, and in fact undermines what little protection someone like me has.
This is primarily because the risk to anyone who misuses a work becomes virtually zero, especially with the modification you say you are happy about to allow a ‘safe harbor’ provision in that if i don’t find the misuse, they can use it until i do, then immediately remove the picture, and have no cost involved.
Another big issue that seems to have been forgotten is that for we ‘artists’ in the real world, the rates publications pay have already decreased to such an extent that if the only risk to a misuser is to pay what they would have paid, the chance of me being able to afford to take the time to pursue it is almost zero—further, as I understand it, there is not a provision for costs in a case to be part of the settlement of the misuser, even if the case were to be found in my favor.
Consequently, even small uses add up to help make a sustainable business model in this industry. We are not talking about Disney being affected, (no, copyright law was rewritten to extend copyright protection as Mickey Mouse was about to pass into public domain, just before the new law), we are not talking Disney sized settlements, no, the rates involved for illustrators and photographers (the field i am familiar with) are too small to cover any litigation, let alone the time involved in pursuing it, as Valorie says above. We need to be producing new work and don’t have a compliance department! However, add such things up, and the possible return/savings for a large user, say text book publisher or media outlet would be significant. Once a model is established for what is considered ‘diligent’ the cat is out of the bag, and without a sunset clause, the risks are permanent.
Why would someone misuses on a large scale? Why would any large company do cost benefit analysis on any risk (chemical spills, slow/late recalls of products, from Dow in india to the Pinto (car) or Bridgestone tires on Explorers, etc etc). If the cost risk ratio is low enough, horrible things have happened that have killed large numbers of people; we are talking such levels of hurt, and you wonder at our complete distrust of such a system? Attempts to weaken liability law claims has always come back to the argument I am making here, that it is only fear of greater loss from poor business practice or laziness on the part of a company that keeps things in check. Something that is seen as a victimless misuse, and you wonder that ALL creators’ concerns over such a change to the law?
As has been asked, who possibly benefits? The piece you write above implies access to old works, access to historical images, access to personal photos are a benefit? First, already there is a 75 year threshold, so if its older than that as i understand, then its already public domain. Educators already have an out in such cases. Personal use of someone using grandma’s retouched picture is hardly something the law is intending to help out. Corbis and Getty already have assumed rights of huge collections, like the Bettman archive and the Hutton which were ‘orphaned’ images which they have copyrighted and are now protected. These companies have no concerns as well, since all the work in their archives the public can access is already copyrighted, and they have legal teams that regularly go after and sue infringers. This law will affect people like me who do not have the time nor resources to check, and it removes the risk to the user if one of us does manage to find the ‘thief’. And sorry, but I have had in my own experience a number of cases in my career of such misuse, and it was only my pointing out the case law, and the possible financial downsides that a negotiated settlement was quickly achieved—not huge, but equitable, and a slap on the wrist to the misuser. Hopefully, therefore, they do it to no one else This law removes any hope of a slap on the wrist, and I will have to either move to a big agent to have them protect me and take a large chunk of the fees for the service, or risk loosing control of that which I have created. Though Mickey Mouse is well served by the current system, many of we small creators would like more protection; though you say that the visual registry database will give this protection, I think that the removal of penalty from the system will negate any improvement this affords. This should NOT become law. Current copyright needs no weakening of a creators rights.
New Law and Naivety Sorry
New Law and Naivety
Sorry Alex, but you seem to be rather naive about how the world really works. To claim a valid defense under this new law, I need only take an image and separate it from the ownership information. Then claim it came from a third party as is. I am now in a position to claim no intent to infringe. Now I only need to make a bad scan of the image and submit it to these hypothetical super bionic registries that can ID any image visually. Because the creator does not need to participate in these private registries, the likelihood I will find the owner in this one over here (one of many) is low. If I do find them (my scan was not poor enough) then I will go shopping for a registry that they are not listed in. Bingo! I am now home free. Any penalties in the rare case I am caught are no worse than having contracted for reuse in the first place. Any system you can dream up for discovery of ownership will have holes in it. This law takes away the tools we owners need to plug the holes.
So what is my power as an artist to stop this behavior? Going to court and spending more than I can recover? I am not even in a position to find out if this is a case of accidental use without spending large sums of money in court for discovery. Not likely. My work and my livelihood are now laid bare to thievery by one and all. I am not interested in participating in a “new” economic model, as the music industry is now facing. If you think that model is fair to content owners, then I know where you stand on this issue. At least with the current law I have a fighting chance of casting doubt in the infringer’s mind that it is going to really hurt if they get caught. This law proposes a whole new area of court cases and the use of the courts to settle things that should be settled in the market place.
Bad and complicated idea. Better to propose a specific remedy that helps the librarians and documentary film makers the proponents of this law are always crying there eyes out about.
I would not mind private registries that hooked into the central Copyright Office system as a new avenue for official protection of art and helping users find owners. Like the ICANN system. It would be great. But it can not be at the expense of the current tools we have to protect our copyright. These are already too weak. If it cost one dollar to register a new work (we might make thousands of them a year), then there would be a lot fewer orphaned works in the future to worry about (assuming optical recognition is 100% effective in all cases -is it?).
BOHICA Those of you who
BOHICA
Those of you who have been in the military will understand this acronym. For the rest of you it stands for Bend Over, Here It Comes Again.
Fair use is already protected under current copyright law and has worked just fine for a number of years. The Legitimate educational uses are valid and should be allowed and that is an established reality.
Someone above rightly pointed out that it’s very telling that the major backers of this legislation are Google, Corbis, and Getty. Google wants to be able to incorporate images into it’s mapping applications without having to go to the trouble of compensating artists and Corbis and Getty, well that one’s pretty obvious. No need to beat a dead horse.
But the real problem here is that the bill allows only for the copyright holder to recoup “reasonable” usage fees and removes the ability to get damages or cover the costs of suing those who violate copyright. This is not only germane to violators who patently steal as outlined by others above, but also takes away a major stick that is incredibly helpful in pressuring deadbeats to pay their bills. Most artists accept work based on the usage rights agreed upon in conditions laid out in either an estimate or attached to an invoice. If a client does not pay, or uses the image in a way not outlined in those conditions, this bill has the potential to strip the artist of the ability to be paid for the time and expense of going through the legal process.
As mentioned in an earlier post: this is a solution looking for a problem and it will create more problems than it solves.
BGriswold, Thanks for your
BGriswold,
Thanks for your comment. You wrote:
What you describe is copyright infringement and probably fraud, as well. That’s the case under current laws and would be the case under any orphan works policy. If someone did this today, you’d have to prove it to a court. If someone did this after orphan works was passed, you’d have to prove it to a court, too (but you’d have an easier way of getting at this fraudulent act if this bad actor actually claimed the orphan works defense). Under orphan works legislation, this bad actor would have to say up front that they’re claiming the orphan works defense and then would have to show the search that they did. And under orphan works legislation, even if this bad actor somehow fooled a court and his attorney somehow avoided Rule 11 trouble, the court would require this bad actor to pay you.
To which your argument may be: “I don’t want to be compensated, I want this bad actor to have never used my work in the first place.” That’s all fine and good, but under current law, you couldn’t have prevented this use, fraudulent or not—you can only sue for infringement after someone infringes your work. This bad actor is so brazen as to rip off your image, remove any identifying info on it, pretend he got it from somewhere else, and then pretend he did a diligent search for the owner, do you really think he cares about copyright law penalties, with or without orphan works legislation? Do you really think such a person exists—someone who’s going to bother to jump through all the orphan works hoops instead of just rip you off?
You’re scared, and I get it. You’re scared that as an artist, you already have enough trouble making a living from your creativity. You already hate infringers and can’t afford the cost it takes to bring them to justice. You perceive “orphan works” as a way for some people to justify using your work without asking your permission. I get it! But you’re letting this fear stop you from listening to any rational argument that anyone has. Your fixation on bad actors is preventing you from even considering the good actors—those who want to find you and pay you. Those are the people for whom this legislation is written, and there a lot more of good actors than bad actors.
The fact of the matter is that orphan works policy, especially this version recently introduced, has built-in safeguards that prevent users from being bad actors. You say we should craft some legislation that would only allow libraries, archives and doc filmmakers to use orphans—well, that’s what we started out doing, but as it turns out, the Copyright Office received over 800 comments, many from regular people, who would like to use a copyrighted work that they can’t find the owner for. It’s not just libraries, archives, museums, and indy filmmakers, it’s the average Joe who would like to make a family slide show or calendar from old photos. Think of old wedding photos—the photographer may have closed up shop or be dead and gone. That stuff doesn’t get registered either, so it makes it even harder to find. But those photos may not be able to be used legally (or the printer may not be willing to take any risks). Everyone should be able to take advantage of orphan works policy, so long as they’re willing to put in the effort to find the owner and pay them if they emerge.
About the visual registries, we proposed them to solve your problem of ineffective Copyright Registration system, and we patterned them after the DNS registries. Read what we wrote about them here. We wanted them referential to the Copyright Registry—it’s what makes the most sense. We think these kinds of systems are the way forward to get artists found and paid, but all we’ve heard is that artist communities didn’t want any part of them—because they said it would be to hard and costly to put effort into populating the databases (even though we explicitly said that copyright owners wouldn’t have to do anything they didn’t have to do today with regard to formally registering their work). These digital systems are cheap for people who use them. I’ve used this example so many times, but think about Flickr.com—$25 gives you unlimited uploads for a year, while the Copyright Office would charge you $35 to up send them 1 work, digitally. Are you saying that there aren’t systems like that today that you could use? Are you using them, and if not, why not?
So, yes, as you say, I may be naive. But I’m not naive about how bad actors work, I’m naive about how to work with artists constructively. I’d appreciate any comments on how to work with your community to address our collective problems.
Alex - the issue is extreme
Alex - the issue is extreme already. What you don’t seem to get is that many artists on the net have ALREADY been ripped off, and this new bill allows that:
a) the wrong person may be compensated, because the information attached to the image may not be accurate.
b) the wrong person who is “searched” in this manner may be permitted to put a permenant copyright on something they did not create due to this bill.
c) grandfather situations to the infinate degree (“I’ve had this on file for over a decade, and no name was ever attributed to it - it also seems the artist has disappeared off the net because her art was stolen so often”).
I’ve seen all three excuses used - and I’ve seen art on tshirts and in print format that DID NOT have the correct information attached.
But here’s a few more things to add weight:
~ Sparky - a furry artist who is quite famous, discovered much to her horror that someone had copied her entire website down to the last detail and simply changed all the artist information to make it “their own”. For a while, because so many people were hitting the wrong site (just to see that it existed) it was higher than Sparky’s normal site in Google. Any “Deligent Search” would have gone to the WRONG PERSON.
~ TK Labus - go ahead and google her. You might be lucky to find 2 pieces of her art. Sadly, her art has been stolen, traced, redrawn, signature removed, redrawn again, claimed, scanned, recolored and abused so many times that she desided to try and remove herself from the internet. Even if someone TRIED to get in contact with her via “a deligent search” online, they wouldn’t be able to. Now, even if you manage to find an original of her work, which are rare, but can be found (if you know where to look), that you can tell is hers, you can say she orphaned it and sure, the money might be there waiting for her, but then you’d be making scores of money off her work and she’d be making jack squat until she found out about it - but since she remains offline and downright impossible to contact - that’s going to be some trouble.
~ International artists…have no rights at all now. Once upon a time, copyright was respected if it crossed a border. Now this bill allows “well they’re in China and left no forwarding address” issues to become profitable.
Here’s how it works from an artist’s perspective. Because it’s happened to me, and I’m STILL pissed about it.
~ I put my picture of a neat dragon online. Because it’s neat, and I want people to look at it and say “what a neat dragon!”.
~ Email the next day “wow, do you mind if I get this tattooed on my arm?” I say “uhh, yeah…unless you want to pay me or something…”
~ Email the day after “well, yeah, that’s not going to happen. I’ll just take it. Thanks.”
~ I go looking for pictures of neat dragons online two weeks later and 40 people have my dragon on their website, including tattoo websites. It’s been redrawn, but it’s the same dragon.
~ I live in Canada, the tattoo artist who now has this image in his portfolio is in the US. I email him and tell him the image is mine and ask him to take it off his website. He responds with a “I know the artist. He gave me the image himself.”
~ I try to get the other 40 people to correct their information, linking them back to my drawing. All of them refuse.
Despite spending time and effort drawing that dragon, and despite having the original version, in hand, right now - I cannot get anyone to fix the mistake, point back to my site and say where the original artwork/concept came from.
And so it spreads like a virus. More people see the dragon, put it on their website, they point back to the wrong site (or don’t give credit at all), and every few days someone comes to my site telling me that I’ve stolen the image from a “famous tattoo”. And eventually they stop coming all together, because my page is now inaccurate for the google search.
Are you telling me that any deligent searcher is going to look beyond the first name to make a claim? No. They won’t.
And if the thieves realize that they can benefit by googlebombing false origins for images, they stand to make a great deal of money.
Another example is the “furry tshirt scandal” from a few years ago. Someone from the furry commmunity happened into a tshirt shop where they found dozens of images taken from some of his favorite artists. On his questions of whether they were being compensated for usage, the answer was “They were drawn by an employee.” And for all he knew, appearently, they were. Even the boss thought so. And he refused to remove the images or stop selling them until he was threatened with legal action which cost several artists money they did not have to get a lawyer.
If you want to see how nasty the internet has gotten for artists, simply think of this:
Most of us are very poor - we can’t take legal action every single time someone rips us off. We just have to hope that enough people will see the error and through THEIR efforts (not our own - thieves seem to turn a deaf ear the artists they rip off) the thief will stop and remove the images. But nearly all artists have given up on trying to keep our online work in our own name. It’s just too hard.
The only thing that holds us together is that BIG DOLLAR COMPANIES are nervous about stealing from artists without due compensation.
But with this bill all they have to do is pay a minimal fee (which can easily go back into their own pocket if they so choose - or never be paid, simply because the original artist is long lost to a line of thieves) and use the art as they so wish. For any purpose. Without any express permission.
What you don’t realize is that with this bill the advantage has now left the artists when it comes to big companies. Because the internet is so completely full of false information when it comes to origins of artwork (in any format), the only way an artist will get ANYTHING out of this is if they pay huge fees to copyright every image they ever create.
The concern is not “well, they can get away with it now, and you still can’t afford a lawyer to press the issue” it’s “the people who stand to make the most amount of money are currently not using images they didn’t create because they have no way to ‘pre-pay’ the useage. Soon they will. And oh god, they will.”
Here’s how I see it working:
(insert large company here) wants to make “Fairy-O’s”, a new type of cereal. They find a GREAT image of a fairy cartoon character - but they have 7 names that claim the character is theirs (but none of them can prove it…and none of them seem to be able to draw anything else). They most certainly are NOT going to pay 7 people who probably didn’t create the character. They diligently search for the real artist (who has removed himself from the internet because he was tired of the stealing), and cannot find him.
they go to the courts, point at their case, and the courts go “clearly the artist can’t be found, pay a minimal, minimal, minimal, minimal fee, far less than you ever would for a normal artist’s work in case he turns up, but in the meantime, go nuts.”
The artist is surpised, and horrified that his cartoon is suddenly everywhere, supporting something he wouldn’t buy in a million years, nor would he sell to said company, ever. He goes to the courts with his original drawings and says “This is my freaking character!” and they say “get in line.” He looks, and much to his horror, there are 75 artists, all with various drawings of his fairy character all making the same claim.
Finally, it all comes down to his drawings which the company said they referenced. The courts award him a measly amount of cash, and the artist has to go around, wanting to gouge his eyes out everytime someone walks by with a “Fairy-O’s” backback or lunch box.
Even worse, who is going to believe that he was the original artist? Even if the courts prove him right, even stating that the images were taken without his permission doesn’t matter anymore. He “abandoned” them, by “allowing” them to remain online. Nevermind he couldn’t get them down because they were stolen.
Basically this bill means that by allowing your art to be looked at or advertised in any way means that you have a very real chance of having it stolen, and then used by a big company without your permission to advertise something you may not agree with.
I am confused on your comment about the fees the Copyright Office would charge in order to register a single image. $35 for a single image? Are you kidding me? I’d be lucky to get that much money selling a single image. If this were really about getting money into the pockets of the artists, $35 an image wouldn’t have even entered the conversation.
Anyways, I think our fears are more than easily justified, though I suppose we had to figure someone would come up with a bill like this - and thus allow others to take advantage on behalf of people who just want to get some slides made.
As an artist I have a few
As an artist I have a few major concerns. I was wondering how is the U.S Copyright law going to protect foreign artists from being copyright infringed? There government does not require them to register with the U.S. copyright offices. On top of that how can a person from another country who doesn’t speak English even know that a person from the U.S. who only speaks English is trying to get a hold of them? It seems that they have every right to also determine the use of there art as well. So if the artist’s art is claimed to be “orphaned”, and the artist turns up. Would that artist be required to Fly to the U.S. and Defend his right to his own art? It seems like a step backwards. Instead of embracing the connection that new technologies gives us. We are setting up laws that can damage and separates us from the increasingly connected world. At least on this issue.
Another concern is that the new law assumes that all art is only done for monetary reasons, and that a fair monetary compensation makes everything right. I can think of many reasons that a person would not want their art used at all. Money or no money. Just because the artist can’t be located, for one reason or another, doesn’t mean that it is fair to assume that he doesn’t care about that work.
This law is going to crush the newly born and still growing online art community. All artists are now going to be afraid that every sketch that they do will be subject to be “orphaned” unless they register every single sketch they want to put up. Some site literally have hundreds of peaces of art. The last I hear, it was $35 a peace to register. That could cost an artist thousands of dollars to safely display the art they create. Plus I am not sure how this “search” for the artist is going to work. If I want to search for a picture of a brown Cat on a white background. I am going to come up with Millions of images and artists. How long would a person have to sift threw these images before it is deemed a “Deligent Search”. Maybe the cat is listed as tan. If that image of the cat is used in a negative fashion then it is possible that it will limit the ability to sell it to another client.
My final concern is personal photos, or photos of models. If there is a photo of a person that can’t be reached and some company uses that image for a major advertisement. Is that really fair to that individual!? They never applied to be the “famous” person. On top of that what if it was for the billboad ad on a major highway for the face of gonorrhea. I am not sure money can “Fix” that. Maybe that one will cross the line to defamation, But I am sure there is an instance that it is not quite defamation but still crappy.
I am just not sure if the loss rights to ownership of IP is worth getting some old photos into a museum. They can just wait a few years until the fair use law deems them old enough to use. To me it is the same as if I build a lawn chair and leave it on my lawn. If I am not home, it doesn’t give anyone the right to take it. Then pay me later for it when I never wanted to sell it to them in the first place.
I apologize if this has
I apologize if this has already been answered or if the answer is readily findable by following one of the links in the above.
Does this bill apply to works where the potential user cannot determine who the author of the work is, or does it only apply to works where the potential user knows the name of the author but is unable to locate the author to ask permission?
It seems to me a lot of the objections to this bill stem from the assumption that the former is the case. Determining who the author is, if unknown, is a lot harder than finding an author who’s name is known. One commenter noted the difficulty for an author to register every work, which would be needed to find an unknown author. However if this all only applies to locating the known author, then the author need only register themselves once and update contact information whenever it changes which is much less burdensome.
I understand how an orphaned
I understand how an orphaned works solution could be helpful, but this is not even close to reasonable.
Sure, it’s hard for John, Q. Public to be deprived of using a piece of artwork that he wants for that million dollar project he’s working on because he can’t find the artist. But what would he do if he DID find the artist and found out the rights were NOT FOR SALE? He obviously wouldn’t be able to use the artwork. Period. Is that so tragic? If not, then why is it so tragic that he can’t use it because the artist can’t be found? WWII Images from Darfur? Same thing.
Anyway, what’s with this “can’t be found” talk I keep reading. If the artist is alive, he/she CAN be found. it might take the rest of the searcher’s life and they may never successfully find them, but they can still be found. Just because the “diligent” searcher didn’t find the artist after meeting the legal requirements for a “diligent search”, doesn’t mean the artist can’t be found.
Not only that, but under this new law, even If I register with more registries than I can reasonably afford, my work will still only be meagerly protected. If the searcher conducts their “diligent search” in a handful of registries OTHER than the ones I registered my work with, they still get what they came for whether I wanted to sell to them or not.
And what about the “fair market value” that I’m supposed to get if a good faith infringer uses my work. It’s MY work. MY PROPERTY. No one has the right to force me to sell MY PROPERTY For ANY price. I have the right to decide where my work shows up and how much I want to charge for it.
If my price isn’t fair, so what? I may have priced it that way because I didn’t really want to sell.
Besides that, I only get the “Fair Market Value” if I take the infringer to court. Which is likely to cost me more in legal fees than I will get for the work, because under this law a good faith infringer is not required to pay for legal fees.
I can settle out of court, right? Fat lot of good that will do. Under current copyright law I can settle out of court and the infringer has something to FEAR by going to court. Under the new law, they know that I know that I won’t make a penny by taking them to court, so I have to take whatever lame price they give me.
Even if the infringer DID NOT make a “good faith” search for my work, They can claim that they did and suddenly it’s ME who has to has to fear going to court not them. Yes, I’m talking about a bluff. If they claim they made a good faith search I have to make the choice of believing them and not suing, or calling their bluff. If I’m wrong, I’ll have to ante up the court and legal fees out of my own pocket.
Exploitation under this new law is soooo easy.
I agree that orphaned works should be available to the public, and in a perfect world, we should always have a way to know orphans when we see them. But this is not that world. It’s more important that we protect the rights of creators to protect their own work than it is to make it a little less risky to grab orphaned work.
I haven’t figured out how
I haven’t figured out how to use the quote function on this blog yet so forgive me for doing it this way.
Alex Curtis, you said:
As an artist and copyright holder, you can appreciate how current copyright law holds back these culturally and societally positive uses. Should we continue to allow this because of some boogyman pornographer?
Yes! because for all the Holocaust Museum knows they might BE the boogyman we’re talking about. the point Snapshot 3 made was a valid one.
It may not be an XXX film producer. That’s not the point. The point is that the user of the material could be using the material in the way the creator finds objectionable and feels could damage their reputation or create other problems.
The WWII photos in question may have been taken by a jewish person and the dead in the photos could be their friends and family. They may find it shameful for these images to appear in a book no matter how sensitively they were presented. So, if Karen Coe HAD found the creator of the photos and he/she didn’t want her to use them, would you still think her freedom of speech is being unjustly impaired?
So if she CAN’T find the originator of the photos, why should it be any different? If you can’t find the seller, you can’t buy the product. It may not even be for sale.
You also said:
…how is today’s copyright law any different with respect to the above points?
It’s different because under current copyright law people are afraid of infringement. Today, if you find someone has infringed your work they without question have acted in bad faith, whether they found it on your webpage or lying in a trash can.
This means that you don’t even have to take them to court. Just threatening a lawsuit is enough to prompt action because you, without question, have a case.
Under the new law, they have little to fear by infringement if they jumped through all the right hoops. Even if they didn’t, they could still tell you they did and you’d have to believe them, because it costs you more to take them to court than you could get from them. That is, unless you could prove that they DIDN’T do what was required. But how do you know until the court date? It’s an easy out for a copyright thief.
Most artist don’t like to litigate, but they want what’s coming to them when their work is infringed. The solution has always been to settle out of court, but how can you even get a fair price out of court when the artist has more to lose in a court date than the infringer?