Countering the FUD about the "Orphan Works" copyright bill (that doesn't exist)

Meredith sez,
There's a bunch of FUD going around the internets today about orphaned works, thanks to this article by Mark Simon of Animation World Network. He's urging artists to write their Congresscritters about eeeeevil orphaned works legislation and screaming about how it will effectively invalidate copyright for everyone except big evil registrars.

The problem? There is no such legislation before Congress (there was a bill in 2006, but it was never voted on; Marybeth Peters of the Copyright Office recently spoke before a subcommittee, but that's not a bill), and Simon is flat-out wrong about every concern he raises.

I've distilled his article down to six key misconceptions, and explained why each is wrong.

This is a really well-written piece. I've gotten a ton of email about Simon's bizarre rant, and it's nice to have a single, central place to point people to. Link (Thanks, Meredith!)


  1. I’m glad to see that someone who knows the facts is posting about this. I ran across a link to this column last night and suspected it was totally off base but didn’t know enough about the specifics to know exactly how and where it was wrong.

  2. Couple of minor errors in the article- duration for new works is life + 70, not 75; however that’s only effective as of the ’76 act with some retroactive effect for works that had valid copyright as of its enactment or were previously unpublished… so a 100 year old photo (eg: pre-1923) would be in the public domain if it had ever been published.

    Here’s a handy chart to sort out duration issues in copyright:

    Also, the issue of whether works posted to the Internet are “published” is not nearly as settled as the author makes it sound. Standards are different for writings, sculptures, and a/v works and a lot of this is still grey areas.

    That said, Simon’s article is nonsense & it’s good to see some rationality in the discussion- Meredith’s piece is right on in all the places it matters.

    (this comment is legal information, not advice, and should not be relied upon for any reason whatsoever by anyone, anywhere).

  3. @fantasticpoison: Thanks for the correction — edited the duration braino and added an IANAL note on the publication issue.

  4. I’m really torn on the copyright question.

    On the one hand: I’m a firm believer that folks should get the full value of their creative work. That’s one way we encourage people to make the effort to create. (“Money is the sincerest form of applause…”)

    On the other hand: The other reason copyright (and patent) exists is to encourage _publication_ of those creative efforts… which is also why these rights time out; after the artist/inventor/craftsman/whatever has taken a fair profit from their work, we want it to continue to be generally available to society.

    I can respect a deliberate decision to take a work off the market for a while to let demand for it build up enough to justify a new print run. But simply letting stuff fall out of print because nobody cares enough strikes me as a disservice to all concerned.

    Hence, I’d favor some system which required that folks periodically re-assert that, yes, they actually do still care about copyright on that item. If they miss the deadline, I’d give the original creator first opportunity to recapture the rights (covering the case where they sold the rights to someone else who isn’t pursuing them); if they don’t do so, I’d argue that the work should immediately fall into the public domain without waiting for the full life-plus to elapse.

    It might be necessary to charge a nuisance fee just to fund the tracking. I’m not sure it would be necessary to charge more than that, since the real goal of this is to recover from the cases where (to take a specific example) a publishing house falls apart and, since nobody can agree on who actually has the rights, there is a “discourteous agreement” that none of the previous owners can do anything with the material. I suspect that if sitting on those rights had just a bit of nuisance associated with it, they’d find a way to transfer them to someone who’s willing to make that investment, and some classic material would still be available.

    Sure, there are holes in this you could fly a space shuttle through. But I do think we need to find a way to keep stuff from falling through the cracks and becoming unavailable just because someone, someday, *MIGHT* eventually want to bring it back into print.

  5. “copyright(and patent) exists is to encourage _publication_ of those creative efforts… which is also why these rights time out; after the artist/inventor/craftsman/whatever has taken a fair profit from their work, we want it to continue to be generally available to society.” YES, but note that these legal protections PRIVILIGES, NOT, in the stricter sense, “RIGHTS.” life+70 years is really stretching that privilege past “motivation” and I think beyond fair profit! In the US in particular, There should be an office protecting and promoting Public Domain properties. The US tax supported language learning “tapes” from FSI should have been used in school textbooks, not left to gather dust until Mr Fellows gathered them.

  6. There is no reprise of the orphan works bill in the USA yet, but it is bubbling under and likely to resurface in an amended form, according to the Orphan Works blog : “Six months after the last version of an Orphan Works bill died in a Congressional committee, a new Orphan Works bill is being drafted for consideration in the 2008 legislative session.”

    It’s also a racing certainty that the UK is cooking up something noxious on the subject, since action on orphan works was a recommendation of the Gowers review of intellectual property.

    As usual, commenters are approaching copyright and orphan works as if the the only interested parties are the creator (trying to make a living) and the consumer (trying to enjoy, use, be stimulated to create). The 800lb gorilla shitting on the virtual carpet is the aggregator/publisher, who on the one hand holds creators to ransom (‘here’s 50p, now give me all rights forever or never work again’), and on the other uses monopolistic price control to shake down the public. Orphan works usage is most wanted by the lardy apes, who are far more scrupulous about their own IP than other peoples’. Naturally they would appreciate content that they can deem free after a suitably negligent search so they can repackage it and pocket all the income, but don’t for one moment imagine this will lead to anything except poorer creators and more monopolistic publishers. They certainly are not going to pass the production savings on to the public.

  7. “Orphaned works” are creations likely still under copyright — photographs, illustrations, written works, music, &c. — for which the original creator cannot be found, and thus their copyright status cannot be determined.”

    I see.

    So,if I, for example, wish to acquire the copyrighted works of a given creator – and not worry about paying for them – I need only have that creator “disappear”. All others would be fearful of his or her eventual reappearance,thus leaving the field clear for me to “bravely” use the material. With no proof of actual death, I would be able to enjoy this freedom of use for at least a few years without being troubled by heirs and other claimants to the estate.

  8. How about this revision of copyright law?

    We create two forms of copyright, greater and lesser. Greater copyright works just like modern copyright: If someone wants to publish something you own the rights to, you can negotiate any amount of money you want, or even just refuse if you don’t like the guy.

    Lesser copyright is something like the musicians mechanical license: Anyone who wants to can publish copies or make derivative works, with the license owner having no right of refusal, but they have to pay the owner a fee determined by a mechanical formula.

    When you first create/publish a work, it’s automatically covered under greater copyright, pretty much just like now. Anything published prior to, say, 2010 is considered to have been first published in 2010, to grandfather in the people who haven’t been keeping track of their publication dates because you don’t have to under current law.

    Every twenty years after first publication, you have to fill out a form with the copyright bureau, or the work falls into lesser copyright. If that happens, you can re-assert greater copyright later on by filling out a form, but any copies or derivative works published during the lapse are still considered covered under lesser copyright.

    When you die, all your copyrights immediately fall into lesser copyright, non-renewable. Twenty years after your death, they all escape into the public domain.

    So under this plan, if there’s an orphaned work you want to bring back into print, you can. If you can establish that the author’s been dead for 20+ years, go ahead, it’s public domain. If you can’t establish that, but it’s been 20+ years since the work was last registered for major copyright, go ahead and publish, just stick the mechanical license fee in an escrow account in case the author or heirs turn up.

  9. I like the idea of extending mechanical license to other media.

    But as I understand it, mechanical licence is actually a voluntary program, instituted because the concept of “cover performances” already existed and copyright holders generally want to facilitate that because it’s considered part of their income stream. And it’s actually quite limited in how the material can be used. You can’t make any but trivial changes to a song’s lyrics under mechanical license; if you want to do much more than changing “he” to “she” in a love song, you need to go negotiate an explicit license.

    Before someone brings it up: The parody exception to copyright is likewise quite limited; the new work has to directly respond to and comment upon the original. It’s ironically safer to portray Disney characters as dope fiends and perverts than to do a respectful homage.

    (Which reminds me, I really wish I knew what happened to the black-light animated-character orgy poster I had when I was a kid; it’d probably be something of a collector’s item now.)

  10. actually, portraying Disney characters as dope fiends & perverts was held not to be fair use by the 9th circuit:

    …however there’s been lots of Barbie litigation won by the good guys:

    see also:

    (and as before, you’d clearly have to be a lunatic to take wikipedia links as legal advice. information only.)

  11. I’ve used orphan works. I used one frame from one movie, on one page, and released my own work for free.

    If the original publisher no longer exists, and may not have ever legally existed, it can be hard to track these things down. I spent days trying to do this myself, writing letters to people involved, and so on.

  12. Ten years ago I foolishly placed a play I had written on a college-sponsored web site collection of dramatic (or comedic) works to be used for “sampling” by drama department students. Since it was a one-person play, essentially a monologue, I figured it might be right for auditions, competitions, etc. Long story short: despite a posting that gave my email and name IF anyone wanted to fully produce it, it got snatched and performed twice in a few months without my permission. (There were also two contacts that resulted in legitimate productions, I’m pleased to say.) I managed to get it yanked from that site, however, and now…I’m kind of sorry I did. After all, I do write the damned things to be seen. But my “union,” the Dramatists Guild, advised that I protect my copyright by at least protesting the “pirated productions.” I did so and was compensated by one of the pirates who actually didn’t think the work had a copyright.

    Today any production with any print advertising at all would probably be caught by Google alert, but ten years ago….

  13. Cory,

    Shame on you for dismissing this important issue in this way.

    First, I urge people to read Mark Simon’s original article. It is not a “bizarre rant.” You might disagree with his conclusions, the urgency of the matter or his tone. But there is nothing bizarre about being worried about how orphan work legislation could be manipulated by big corporations to undermine individual’s copyright protections. This is a very real issue that Simon explains well. And Simon provides ton’s of links to articles, hearings, even audio discussions to back up what he is saying. Simon’s links to a recent 3/13/08 hearing on the issue by the U.S. House of Representatives Judiciary Committee. Clearly orphan work legislation is being talked about in the government right now. The idea that people should just wait until legislation has been written and and is about to be passed into law is bizarre. How can it hurt for people to inform their elected officials that they care about this issue or begin reading up on it? Look at what happened at the FCC recently when laws to consolidate big media were pushed through after rushed hearings. The opposition had no time to get organized and the FCC passed it over protests. If anyone cares about this issue now is the time to be talking about it.

    I have been trying to educate myself on copyright and it is a very complex realm. It is hard for Simon to sum up everything in a four page article rather a hundred page white paper. (That’s why he has links to more information.) And yes, Mark sounds real angry about the issue, but I think he has a right to be. I’ve heard talk about “fixing” the issue of how copyright law treats orphan works. I never had much of an opinion because it sounded kind of reasonable. “Hey, they’re orphan copyrights. No one wants them. What’s the harm in just letting them go?” But after reading Simon’s article it’s clear that even the term “orphan works” could be as loaded and dangerous as “separate but equal.” Simon makes a very good case this phrase “orphan works” could become cover for legislation would require copyright registration. And that would certainly be mostly to the benefit of corporations who have enough money to pay for an army of lawyers.

    One of the key aspects of the Berne convention is that no author should be required to register their creations in order to be protected by copyright. As Wikipedia states:

    “The Berne Convention was developed at the instigation of Victor Hugo as the Association Littéraire et Artistique Internationale. Thus it was influenced by the French “right of the author” (droit d’auteur), which contrasts with the Anglo-Saxon concept of “copyright” which only dealt with economic concerns. Under the Convention, copyrights for creative works are automatically in force at creation, without being asserted or declared: an author need not “register” or “apply for” a copyright in countries adhering to the Convention. As soon as a work is “fixed”, that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires.”

    U.S. copyright law was originally inspired by the Berne Convention with it’s emphasis on protecting artist rights rather than economic interests. But over the years thanks to a mess of legal changes by congress (such as stripping away the human rights of screenwriters) is has gradually become more of a tool for corporations to exploit artists than a way to protect them. In 1910 the writers of films had their rights ripped off by corporations. I don’t think it’s impossible to imagine the corporations wouldn’t like to use the term “orphan works” as a “separate but equal” way to rip off the writers of blogs and other internet creations.

    You say that Patterson’s article is “really well-written” and how nice it is to have a “single, central place” to point people to about ophan works legislation. Are people suppose not worry about this issue because Patterson’s blog post is well written and Simon’s, in your opinion, is not? Is that the way we should make decisions about legal matters, human rights and government oversight? On who’s writes the best short blog post?

    Patterson has an much easer task than Simon because her message is simple: don’t worry about it. Simon is trying to call people to take arms to protect their rights. Patterson says, don’t bother. It’s a little easier to have a calm, reassuring tone when you’re telling people they don’t need to worry their little heads about something.

    Simon’s agenda is very clear. He wants artists and authors to get educated, organized and act. He wants them to be afraid of what could happen. He goes into detail about the issue, talks about opposing arguments, and provides links to information, mailing lists and other organizations to help people join his cause. That’s a lot of work from someone who is clearly passionate about the issue. Moreover, Simon isn’t sugarcoating this. The enemy is bad, has tons of resources, and isn’t about to give up. Hard to sum that up calmly in a short post.

    Patterson’s agenda is less clear. Does she have a history of fighting for artist rights? Does she have a history of commentary on copyright legislation? What’s her dog in this race? Why write this piece other than to prevent people from thinking or saving poor congressmen from having to read letters fretting about nothing. (My dog in this race is that I’m a screenwriter and I’ve already been ripped off on the issue of copyright by the corporations with the assistance of the US congress. More than once.)

    It’s a lot easier to say “What, me worry?” as Patterson does than making a case to storm the Bastile which Simon does.

    But he convinced me.

  14. @JFLawton: What’s my dog in this race? I’m a programmer who works on both open- and closed-source software; I founded a tech startup about two years ago. I’m also a science fiction writer, albeit not a terribly active one any more. Copyright law affects every aspect of how I earn my living (as do patent and trademark law, though those are very different animals), so I make it a point to keep tabs on what’s going on in the intellectual property world.

    “Prevent people from thinking”? Au contraire, I made it a point to link directly to original sources precisely so that readers could have a look and evaluate the position of the Copyright Office, the text of former failed legislation, the Library of Congress’s online index of current legislative actions, and the state of current national and international copyright law for themselves. Simon, by contrast, falsely claims that orphaned-works legislation is currently before Congress (there isn’t any), and links to … his company’s website. And a special-interest group he’s part of. Oh, and his company’s website again. He makes a lot of bold claims, and backs up exactly none of them. I find that pretty insulting, and I’m annoyed that Simon has whipped so many people into a frenzy over a made-up issue.

    Do I have an agenda? Of course I do: getting people to do their homework and think clearly about important issues rather than running in circles, screaming and shouting. If just a handful of people actually learn something about how copyright law works — hell, even how the legislative process in the United States works — and use that knowledge to become active in areas of copyright policy where there are actually bills on the table (such as S. 1353, the Internet Radio Equality Act of 2007; or H.R. 1689, the Curb Illegal Downloading on Campuses Act of 2007; or S. 1957/H.R. 2033, the Design Piracy Prohibition Act), then I’ve done something meaningful.

  15. @14, sorry, I couldn’t disagree more.

    In Eldred v Ashcroft, the supremes held that *ninety eight percent* of the works in copyright are orphaned. Not only can their authors not get paid for their use, but in many cases, all known copies of these works will disappear before their copyrights expire, which will effectively remove these artists from the historical record — forever. This is already happening to a lot of early, post-1928 (Steamboat Willie) film stock, which is disintegrating in archives because it can’t be used because no one knows whom it belongs to.

    The orphan works proposals that have reached anything like maturity say that:

    1. Various entities — including nonprofits, including artists’ groups, including others — can use registries to help with orphan works. These registries will be optional, and the LoC will work to keep them honest. The LoC has maintained its own registry since Ben Franklin.

    2. Anyone who finds a work that is not in the registry is required to conduct a good-faith search for the author. If that search comes up null, the LoC or a collecting society will collect a set royalty for use of the work and escrow it for the author.

    3. If the good-faith search turns out to have been merely pro-forma, conducted *without* good faith, the author will be entitled to massive statutory damages.

    None of this is coherent with the bizarre rant that this guy published. He’s basically made up a bunch of stuff, backed it up with selective and misleading quotations, and then declared the sky is falling.

    Orphan works legislation is desperately needed, so that we can:

    * Make new works from old

    * Rescue old works from history’s scrapheap

    * Pay the 98% of artists whose works are presently orphaned

    You’re right. The Berne convention prohibits mandatory registration. That’s why we can be absolutely certain that the US will not pass an orphan works rule on the lines that this guy is worried about, nor will any other WTO signatory.

  16. Ms. Patterson,

    You don’t answer any of my key points.

    And I don’t have the time to change the subject and research the new bills you want to talk about instead (since you clearly didn’t research the issue we began to talk about and said there was no point in worrying about it). But perhaps other Boing Boing fans would like to research the:

    S. 1353, the Internet Radio Equality Act of 2007;

    H.R. 1689, the Curb Illegal Downloading on Campuses Act of 2007

    S. 1957/H.R. 2033, the Design Piracy Prohibition Act

    Which you don’t state any opinion on. Are you pro or con any of them?

    Perhaps other Boing Boing fans have some opinions about these proposed laws. But I’m worried about the orphan works issue which you say (incorrectly) isn’t coming up any time soon in congress.

    In the meantime, should we just assume Mr. Simon as a retard, a crack smoker and a liar as you suggest? Which makes you… ?


  17. Corey,

    Give me a break. Nobody knows what to do about Mickey Mouse? Are you serious?

    Are you serious?

    Are you serious? Again. Are you serious?

    You say, “This is already happening to a lot of early, post-1928 (Steamboat Willie) film stock, which is disintegrating in archives because it can’t be used because no one knows whom it belongs to.”

    Umm… they show it as Disneyland! Again and again. They fight like tigers to make sure they own the copyright. They know they own it. (Walt killed anyone that disputed it. Just joking.)

    And Disney did everything they could to corrupt the US government and copyright law to protect their rights to Mickey Mouse for into all time.

    I will happily pay myself to digitize and protect Mickey Mouse under public domain to share it with the future. But Disney doesn’t want that.

    You must be smoking some of the crack Meredith talks about.


  18. JF –

    Steamboat Willie is the definition of the time-period when the public domain was closed down, thanks to the copyright extensions pursued by Disney. It’s the other materials that Cory is referring too, not Steamboat Willie itself (which as you say, is perfectly safe).

    I think you’ll find that Cory (no “e”) knows quite a lot about Disney and copyright law.


    Both sites have pdfs of the two bills House and Senate that were indeed introduced. The Senate called for comments no later than April 30th.

    This bad boy is fast tracked.

    Rep. Berman and Sen Leahy are leading the charge.

    Don’t think it will matter to the day to day visual content provider who for 20 plus years or so has been cranking out images day after day and now has that inventory up for grabs unless that re-register in an as yet unbuilt registry?

    Want another take…try the American Society of Media Photographer site. They appear to be for the bill. Insane!

    By the by, GAG and ASMP recently received almost $2,000,000 in foreign photocopying royalties (Reprographic Royalties). So it is as though they don’t have resources.

    As Director Emeritus of the Society of Illustrators and as Executive Director of the American Society of Illustrators Partnership, I urge all creatives to tell Washington: “It ain’t broke. Dont fix (c)!”

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