Superman is not the only news story pertaining to comics and copyright. Last week, an Animation World article by Mark Simon caused a bit of a stir. The subject: a proposal to amend the U.S. copyright law regarding so-called “orphan works,” material whose creator ostensibly cannot be identified or located.
According to Simon, Congress is poised to pass legislation that would essentially eviscerate copyright protection for illustrators, photographers and other creators. Blogger Meredith Patterson, in a widely acclaimed post linked on Boing Boing, ostensibly refuted Simon’s article by showing it to be “poorly researched,” “illogical” and “retardedly” insistent that artists write their representatives about the bill.
Since this is a pressing IP issue that has engaged both the animation and comics communities, let’s set aside our Siegel series for a moment to determine whether artists concerned about this issue are indeed over-reacting.
Before I start this Q&A, I want to note that I am not writing this as a partisan for either side. My primary aim is to explain from a neutral perspective why so many artists are concerned about orphan works legislation. If you want to understand why I asked the particular questions below, I recommend that you first take a look at the Simon and Patterson essays, with the understanding that I am not endorsing everything in either one. You may also to skim through the 2006 orphan works bill and, for a comic artist’s perspective, listen to this podcast interview with Alex Saviuk.
Why all the fuss about orphan works? On the surface, the need to make it easier to use orphan works would seem to be self-evident, so much so that a number of observers believe that some kind of reform will be passed. After all, if the copyright holder can’t be found, why should copyright law keep the work out of the public eye?
However, as is often the case in law, the devil is in the details. For one thing, the name “orphan works” is itself objectionable to some, as it implies that the bill extends only to works bereft of a living creator. Moreover, statutory language can have unintended consequences beyond otherwise benign ideals. In the case of the Orphan Works Act, language in the version originally introduced in 2006 can arguably be applied in ways that are detrimental to professionals who make their living from the sale of their copyrighted work.
Isn’t the Orphan Works bill dead? The original version of the Orphan Works Act did not pass in its first outing. This is not unusual, even if it does seem to have been unexpected at the time. Nonetheless, that doesn’t mean the proposal stopped being a live issue. As is once again not uncommon, negotiations over language continued behind the scenes and a new version is being prepared with the aim of being fast-tracked for approval this summer. This is why the relevant House subcommittee held a hearing on orphan works on March 13, 2008.
How would protecting the right to use orphan works affect today’s creators? The original version of the Act does not limit its scope to old material. It would apply regardless of when the work was created, from decades ago to the immediate present.
In brief, the Act’s currently available language would protect the use of orphan works by limiting liability for infringement when a “reasonably diligent search” was “unable to locate” the material’s owner. Under the current system, an infringer could be liable for costs, attorney fees and other substantial damages. The draft Act sets these damages aside when a court has found that the requisite search had been made. In that case, the remedy is limited to “reasonable compensation.”
By limiting the remedy to such a relatively small amount, the Act would considerably shift the incentive structure of copyright law. At present, copyists know that if they do not accede to a request to stop exploiting copyrighted work, they could end up owing an amount far in excess of any expected gain. Were the draft Act to become law, the infringers would know there’s a good chance they could face little more than the equivalent of a modest licensing fee–and that’s only if a copyright owner decides to risk the time and expense of a trial. The enforcement of copyright interests would arguably become impractical if not impossible for all but the wealthiest copyright holders, since the cost of a lawsuit can be orders of magnitude greater than the prospective compensation.
What about registration? Beyond assuming the risk of having to bear court costs and attorney’s fees, creators are also concerned about the prospective expense of making their work findable by a search. Photographers and illustrators feel particularly vulnerable in this regard, because it is so easy to separate their work from a visible copyright notice.
The Act may not require registration, but as a practical matter registration would be the only way to secure meaningful protection for works susceptible to copyists. However, artists have noted that registering each work with the Copyright Office would be cost prohibitive for many small- to mid-range businesses, as would be registering their works with the commercial private registries envisioned by the bill’s proponents as a way to make to make works more findable by a prospective infringer.
Doesn’t the Berne Convention make the fear of a registration requirement unreasonable? While the Orphan Works Act does not literally go against Berne by requiring government registration, it arguably creates a substantial disadvantages for anyone who chooses not to place all of his or her work on a government or private registry. Because unregistered material would be that much more difficult to find, failing to register creates a significant risk that a court will treat it as a material whose owner could not be found by a reasonably diligent search. For artists concerned about copying, that the Act may not technically require registration is just a matter of semantics.
Shouldn’t artists just wait until the language of the new bill is available? Whether it is “retarded” to raise concerns when a Congressional subcommittee is soliciting outside opinions on imminent legislation that the subcommittee chair has announced he wants to pass quickly is something I will leave to your discretion. There are reports that the latest version will have adjustments designed to address some of the concerns raised in regard to the 2006 version, but as of now the specific language is known only to the legislators, aides and lobbyists.
One thing to keep in mind, though, is that in law writing, as in law practice, the battle is often won in the drafting stage. Multi-billion dollar industries that stand to benefit from harvesting others’ intellectual property have been pressing Congress on this issue for years, and you can be sure that the pressure did not relent between 2006 and today. Speaking as a historian as well as a lawyer, I would observe only that the blogosphere’s insistence that artists wait in silence while elites write the law is not lacking in irony.
April 15th, 2008 at 9:07 am
Jeff, correct me if I’m wrong – if you are responding in comments, that is – but the old version of the Orphan Works bill required a “set aside” payment by would-be copyists, didn’t it?
If I recall correctly, and am not making up memories, after conducting the “reasonably diligent search,” the later user could notify the Copyright Office that s/he was going to use an Orphan Work and deposit money into an escrow account.
I don’t know that that negates or amplifies Mark Simon’s concerns, but it would play a factor in public perception of Orphan Works use – if, again, I actually remember the correct details.
April 15th, 2008 at 1:21 pm
As Jeff states in the last paragraph, it is important to make input before a bill is passed. It’s much easier to make alterations before because the lawmakers still need your vote then. After a law is passed, it is in the hands of the courts, which could take decades to force change.
This bill WILL come up again. Same as the Net Neutrality bill.
April 15th, 2008 at 5:30 pm
I’ve yet to see the pro-Orphaned Works crowd make an effective case for why such legislation is needed to the degree that it is worth divorcing creators from their works, or at the very least from their ability to set their own price on their works. The cases made tend to be either over obscure reference works where, if there’s interest in the material, it can be sated by the legitimate copy which would be being reproduced, or cases like the examples presented by Meredith Patterson, which are either misleading in whether orphan works legislation would solve the practical problem (the “wedding photo” example, where it is unlikely that the scanning service would actually be willing to research the photographer source themselves) or whether even there is any problem under the current law (if you own those photos in your attic, yes, you can give them to the historical society even if you don’t know if they’re under copyright; transferring the physical photos does not involve making a copy.)
April 15th, 2008 at 6:01 pm
@Jim: I know that an escrow account has been discussed, particularly among photographers, as a preferable means of dealing with the supposed problem, and from what I’ve read both here and overseas the model of a working escrow system is Canada. However, the U.S. Copyright Office dismissed that option here.
April 16th, 2008 at 10:01 am
While it’s true that registration would be the only [i]bulletproof[/i] way of protecting your copyright, it would not be particularly difficult under the terms of this bill to protect your works without doing that. It would be quite simple, in fact: Put your name on your work and make yourself easy to find. Which any sensible creator is doing already. This bill would require a “reasonably diligent” search beyond the Library of Congress database, and if you can show the court that an infringer [i]didn’t[/i] make that good faith effort to identify and locate the creator of your work (e.g. by successfully Googling yourself in court), the safe harbor provisions wouldn’t apply to him, and you could sue him just as you can now. The scope and language of the bill could certainly be improved by input from creators, but as it reads now, it bears no resemblance to the version in the mind of Mark Simon, and it’s not nearly as dangerous as some creators have construed it to be.
April 16th, 2008 at 4:07 pm
@Todd: There are several problems with the inclusion of names.
(1) Including a name or other mark can spoil the effect of a photograph, print or other design. For example, do people really want wedding dress prints to be intertwined with the print-designers name?
(2) Even if an artist includes a name or mark, these are easily separable. Sometimes this happens outside the infringers control–a person photoshops out the name in a copy distributed throughout the web. Sometimes the infringer will cut it out and feign ignorance–and if you don’t believe that can happen, you should spend some time in the world of IP enforcement, because it happens all the time.
(3) The so-called “simple” solution is actually rather expensive for a professional designer who has a considerable inventory. Part of this expense is monetary. Another is loss due to increased copying–the more accessible you make your designs, the easier it is for them to be appropriated.
One thing I’ve noticed in the critique of Simon’s article and elsewhere is the apparent assumption that the use of the act will be limited to the ideals of its most noble advocates. This is rarely the case, even for the most sincerely well-intentioned laws. It’s like thinking that a software program we’ve designed will respond to our intent, not the actual code–an approach likely to produce its share of bugs and harmful intrusions.
Think of law as an algorithm–because that’s what it is, really, an algorithm for human behavior. The code in the Act can produce have of the helpful effects you envision, but it can also have some of the harmful effects envisioned by professional designers (and not just Mark Simon).
To get a sense of a good way to think of law drafting, we can analogize it to Bruce Schnier’s description of the mind of a security professional, who succeeds by figuring out how otherwise good technology can be used in bad ways.
http://www.wired.com/politics/security/commentary/securitymatters/2008/03/securitymatters_0320
April 16th, 2008 at 9:22 pm
One thing I’ve noticed in most of the defense of Mark Simon’s rant is that it assumes that the problems that would exist under this legislation would be without precedent, and caused by it. But as you acknowledge, there are already unscrupulous people filing the serial numbers off other people’s work and using it without permission, and they’re not waiting for an orphan-works bill to make it across the president’s desk to do that. Same problem. And the redress against such bad-faith infringement would be the same. The infringer’s defense might include the hail-mary of claiming an “orphan work” exception, but that only helps if he actually and demonstrably conducted a good faith search, which is not the scenario that the doomsayers keep warning about.
I’d love to respond to your comments in paragraph 3… but I have no idea what you’re talking about. I never suggested that anyone publish their inventory of designs, only that when/if they do make their work available to the public that they make it easy for people to find them. Is this about your wedding dress example? Well, does a bolt of fabric not bear the name of the textile manufacturer? And do they not know who they licensed the design from? A good-faith reasonably diligent search would turn up this info. And a bad-faith perfunctory search would get shot down in court.
Unless I’m misunderstanding, and the burden of proof is on the plaintiff, to prove that the defendant did NOT conduct a valid search, in which case I can see the alarm. But if the burden of proof is on the defendant to prove that they satisfied the requirements of the bill, I don’t see how truly guilty parties would have much luck using this defense.
The law is an algorithm, but it runs on a human computer, which has the capacity (admittedly, not always exercised) to make common-sense judgments that transcend the code. Thorough debugging is of course critical, but no code is ever perfect… and yet the legal system still works.
April 16th, 2008 at 11:36 pm
“But as you acknowledge, there are already unscrupulous people filing the serial numbers off other people’s work and using it without permission, and they’re not waiting for an orphan-works bill to make it across the president’s desk to do that. Same problem.”
No, not the same problem, because the person who removed the serial numbers may not be the same person who is trying to use orphan works protection — if, say, someone passed an essay around in email without proper attribution, then someone else who received that essay chooses to publish it in print, that work appears orphaned to the person who received it. (And beyond essay, let’s say it’s a photo — a much harder thing to do a search for the original creator of.)
April 17th, 2008 at 10:45 am
If someone is ignorant enough to think that the lack of a by-line on an essay makes it an “orphan”, they’re not even going to bother Googling it, let alone making a documented, reasonably diligent search for the author. This bill wouldn’t give that person any more protection from litigation than the current law does.
While you can’t simply Google using an image as the search parameter (yet… it’s in development), there are for-fee services to do image searches, and the bill requires the use of them if available. You couldn’t just take an unlabeled image, throw up your hands and say “I don’t know who created this, so it’s an orphan” and get away with that in court.
As for why orphan works legislation is needed, it’s because copyright law has gone too far in freezing works out of the public domain. It used to be that orphan works fell into the public domain pretty quickly, such that an obscure superhero character from 1947 would obviously be free for anyone to use. But with near-perpetual copyright terms, that no longer happens. If you want the public domain to be forever limited to works from before 1923, the status quo is just fine. I don’t, and allowing works that no one still has a proprietary interest in to (effectively) join the public domain is the only way I see that changing.
April 17th, 2008 at 5:19 pm
This Orphan Works proposed legislation should be viewed as a criminal and racketeering conspiracy.
The reality is that if you cannot find the owner, then don’t take what is not yours. There is no fundamental “right” of anyone, including the public, to have free access, without permission, without negotiation, to other people’s property. The plaints that copyrighted works should be available to the public aren’t coming from the owners of the works, but rather from those who wish they had the works and have found a clever and sleazy manner in which to steal and profit from the work of others – under the cover of public accessability.
This legislation is transparently crooked and its mealy-mouthed proponents should be ashamed of themselves. It seems to me that the opponents of the Orphan Works proposal might consider becoming more active, more vocal, and more willing to label this the criminal act it is.
April 17th, 2008 at 8:18 pm
“You couldn’t just take an unlabeled image, throw up your hands and say “I don’t know who created this, so it’s an orphan” and get away with that in court.”
No, but you can make a lot of effort to figure out who holds the right to an image to which the attribution has been removed and fail.
“As for why orphan works legislation is needed, it’s because copyright law has gone too far in freezing works out of the public domain”
The orphan works legislation does not put any more material into the public domain. It just gives folks protection when violating rights held by another. If you want to increase the public domain, the right thing to do would be to actually increase the public domain. Using an obscure 1947 superhero hardly seems a crying need — if you need a superhero, there are plenty that did go PD, and barring that, making up a new hero isn’t exactly hard.
April 19th, 2008 at 8:53 pm
Jeff – thanks for posting one of the only informed and reasoned blog discussions I’ve encountered on this issue recently. You raise a good point about the effect of limiting remedies.
I went ahead and linked you in the orphan works discussion I posted on my own journal – I hope that’s ok with you!
April 20th, 2008 at 5:47 pm
While there are valid concerns about upcoming legislation.
“Speaking as a historian as well as a lawyer, I would observe only that the blogosphere’s insistence that artists wait in silence while elites write the law is not lacking in irony.”
There might be irony in the statement, but I also see no reason to letterbomb Congress by going only by the words of Mark Simon, without researching the issue thoroughly.
What Simon was encouraging was to mass bomb Congress for Rejection of the bill. It would be better, so write to your congressmen concerns over the bill and suggest they look for certain language of the upcoming bill to make sure any concerns about how much one is compensated and what qualifies as an orphan works is written with many kinds of artist. If certain standards are not met, you’d conclude in your letter that they reject the proposal.
I’d like to further note Canada has had an Orphan Works law since 1990 and Copyrights only last 50 years (unless renewed). A Public Domain Enhancement Bill that was rejected in 1995 stopped the latter from happening.
April 30th, 2008 at 6:49 pm
“Speaking as a historian as well as a lawyer, I would observe only that the blogosphere’s insistence that artists wait in silence while elites write the law is not lacking in irony.”
Most of what I’ve seen in the blogosphere consists of people taking the distortions of Mark Simon’s ignorant little rant at face value, and running around like chickens with their heads cut off, wailing about the end of copyright as we know it. I don’t see artists keeping silent at all… even when they don’t know what they’re talking about.
@Frank: Your comments are nonsensical gibberish. Sorry.
April 30th, 2008 at 6:51 pm
Guess what, Nat: This bill wasn’t written just for the superhero comics industry.
May 9th, 2008 at 2:34 pm
Ok here is stright from the horse’s mouth:
http://leahy.senate.gov/press/200804/042408e.html
May 20th, 2008 at 10:30 pm
I know this might sound bizarre, but how come people have to rely on ripping off old work? Are corporations and businesses so cheap that they can’t afford to pay living artists to create NEW work? And I’m talking in the commercial sphere.
Because, let’s face it, even though the propaganda surrounding this bill presents a bunch of well meaning librarians, documentary filmmakers and grannies wanting to fix old family photos from the 30′s, that’s not REALLY who is behind this bill at this point.
At this point, what we’re talking about are large sized commercial interests looking to get freebies, and in the case of an “ooooops”….as in oooooops I guess BOB the intern didn’t really look hard to find the real owner of this image, what this legislation is about is liability limits.
So maybe this is just the a version of limiting medical malpractice liability limits, only this bill is all about screwing creatives.
July 6th, 2008 at 12:17 am
One thing is made clear in some of the responses here- the “education campaigns” of the RIAA, MPAA, and like-minded corporate clubs has had an impact. There is now a class of people, apparently, that thinks the very concept of the public domain is unfair, despite the very clear intentions of Jefferson, Madison, et al and the very clear language of the Constitution.
Frank Tencsza says, “The reality is that if you cannot find the owner, then don’t take what is not yours. There is no fundamental “right” of anyone, including the public, to have free access, without permission, without negotiation, to other people’s property.” This is in a country where copyright law now makes intellectual property the “property” of the grandchildren of the creator, or the property of a corporation for nearly a century. I know Mark Twain and Sonny Bono (one a great man, the other a horse’s ass) felt that IP should be passed down to heirs in perpetuity, but, quite frankly, they were both either historically blind or incredibly greedy (Twain, at least, was a hypocrite, as I point out in a few paragraphs). The entire realm or the arts, literature, and sciences would not exist as it does today if there weren’t a mechanism for ensuring the eventual passage of copyrighted works into the public doman.
Petra blathers on about the laziness of those who can’t come up with “new work,” as though there really is any such thing. Art comes as much from appropriation as it does from innovation. The current copyright laws have gone radically far in the direction of private domain (largely at the behest of corporations over creators, as one can see in the Siegel case.) Checking that inertia with an Orphaned Works bill is a very, very small remedy to that. It is not the end of the world.
If Disney had been around a few centuries ago, here is what we would not have: Romeo and Juliet (neither the play by Shakespeare that he ripped off from a poem; nor the numerous ballets and operas that have arisen from his play; nor West Side Story; nor the pairing of Leonardo DiCaprio and Claire Danes (well, I could have lived without that)). We would not have Wagner’s Ring Cycle. Twain, who believed in perpetual copyright, would not have been able to write “A Connecticut Yankee In King Arthur’s Court,” of course. Comics fans, take note- there would be no Mighty Thor.
But then again, if Disney could retroactively have its way- there wouldn’t be Disney. You see, THAT company made its fortune pillaging public domain works (in fact, it waited just one year after the copyright of The Jungle Books lapsed to make that little film (and consequently taught generations of people to mispronounce the name “Mowgli,” much to the Kipling family’s eternal chagrin.) And those works it wanted to use which WEREN’T in the public domain? Well, look at their dealings with the Milne family over the years….
Whether you think this particular bill has merit or not is based upon your own prejudices and your own understanding of both the law and technology. I really have mixed feelings about it one way or the other. But I HAD to step in and comment on the ill-informed people here who would rather see art and invention in a strait-jacket forever because of some misplaced notion of “fairness.” (These same people, no doubt, think that the very concept of a generic drug is a pox on civilization, and I’m sure go out of their way to only support name-brand medications.)
July 6th, 2008 at 12:23 am
Quick question: I keep seeing the example of wedding photos being bandied about, as apparently my parents photos are not owned by them, but by the photographer. My question is: why is this? Why is this not considered a “work for hire” the same way that, say, Scrooge McDuck would be?