Orphan Works: FUD and Facts

FUD (Fear, Uncertainty, and Doubt) is the term for any strategy intended to make a company’s customers insecure about future product plans with the purpose of discouraging them from adopting competitors’ products. FUD is also an internet term for rumors or emotional responses to issues that are passed off as facts.

In the last week or so the term “FUD” has been bandied about over the reactions to the proposed and recently released Orphan Works Act of 2008, with many people accusing folks like me of emotional reactions to imaginary issues. While some of that has been going on, there is plenty about the actual bills, now in final form and available for study, to be deeply concerned about. That said, I’m afraid I’m a little guilty of spreading some FUD about the Orphan Works Act of 2008, albeit not on purpose. I relied on the information others were sharing, and I have found some of that to be misinterpreted and some flat out erroneous.

I downloaded and throughly read the bill(s), and while I do not think they are a very good solution to the “problem” of orphaned works, it is not exactly the orge that many people have been saying it is. I’ve been vocal in my opposition to the acts mostly based on information I’ve read from others. I am still opposed to the bills in their current form as I think they are too ambiguous and will still do some damage to professional illustrators and other creative professionals. However there are some attempts to prevent that damage… they just do not do the job.

Here are the facts on H.R. 5889 The Orphan Works Act of 2008 and S 2913 The Shawn Bentley Orphan Works Act of 2008, the house and senate versions of the bill respectively… what they try do and what they one can reasonably expect them to do:

What the Bill is Trying to Do

The purpose of these bills is supposedly to address the “problem” of orphan works… the definition of “orphan works” is supposed to mean a creative work that has been actually abandoned by it’s creator… either they have died and no heir is upholding their copyrights on their work, they don’t care and have literally abandoned the work and do not want to defend their copyrights, etc. There is probably a lot of legitimate orphan works out there, where the creator cannot be found under any kind of search… old family photos, paintings discovered in attics, films found in vaults etc. The proponents of these bills say there is a real issue with these works getting lost permanently because they cannot be copied or archived without the permission of the creator, who cannot be found. Many also feel that they should be able to freely use images and other creative works they did not create just because they are out there and their creators are not easy to locate. That part is garbage. Those people can be sure of one thing… they are not the copyright owners of the work they are trying to use. Why should anyone be allowed to use work in that manner? New work should be commissioned and paid properly for in those cases.

First off, as I stated and agreed with previously, these bills do not change the current copyright laws as they pertain to a creator and their work. What they do is change what a creator can do and what they can get in compensation when their work is infringed, depending on the way an infringer went about doing it. The bill itself is subtitled

A BILL To provide a limitation on judicial remedies in copyright infringement cases involving orphan work

and that is exactly what it does. It does not change the copyrights of a piece of creative work. It does not even change the definition of using such work without permission even IF the user goes through the process of trying to legitimately find the creator… that is still called “infringing” throughout the bill. What it does is it gives a user the ability to, after fulfilling certain requirements including trying to find the creator of a work they wish to use and not being successful in that search, the ability to use it and not fear getting sued for anything more than “reasonable compensation” for use of the work in the first place.

How It Works

The Orphan Works Act of 2008 attempts to limit the amount of compensation a creator who finds their work infringed upon can get by doing the following:

• Defining the process for claiming an infringement– A creator needs to go through a specific process to file a claim against someone using their work under the guidelines of the Orphan Works Act. This includes a written notice to the infringer with their name, the title and/or description of the infringed work, contact info and “information from which a reasonable person could conclude that the owner of the infringed copyright’s claims of ownership and infringement are valid”. This does no tmean going to court. According to the bill, the infringer, upon receiving such notice, must engage in negotiating a compensation for the use of the infringed work. It only goes to court if the infringer and copyright holder cannot agree on the amount of compensation, or if the infringer does not believe the person making the claim is the genuine copyright owner of the infringed work. The bill specifically states that if the infringer “fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or fails to render payment of reasonable compensation in a reasonably timely manner”, then protection from suing for things like “actual damages, statutory damages, costs, and attorney’s fees” over and above the “reasonable compensation”. It’s important to point out that this is meaningless since these kinds of damages can only be collected if the work itself was registered with the US copyright office withing 3 months of creation in the first place under current copyright law, which is not changed by this bill.

• Defining the process by which an infringer can use a work as an “orphan work” and be protected by the limitation of remedies paid to the infringed party– Called “Conditions for Eligibility”, these are the steps a party must go thorough in order to claim a work is orphaned and to use it under the protection of the Orphan Works Act- They must prove via a “preponderance of evidence” that before the infringement began they performed and documented a “qualifying search, in good faith, for the owner of the infringed copyright”, they could not find said owner, they file with the Register of Copyrights a “Notice of Use”, they “provide attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if such owner was known with a reasonable degree of certainty, based on information obtained in performing the qualifying search”, and they include a symbol prescribed by the Register of Copyrights with the infringed work identifying it as an orphaned work. There is also an attempt to define a “qualifying search” with poor results

• Defining the “reasonable compensation” the copyright holder can get from the infringer– This is as ambiguous as it sounds, and one of the chief problems with the bill. According to the bill’s language, “The term ‘reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.” In other words it’s the infringer on one side claiming they’d pay only this much, and the copyright owner on the other saying they’d have charged this much. The courts had better have a good source of reference for industry standard fees for usage, and make infringers pay that amount in all cases or this will be a nightmare for creators

• Defining exceptions and limitations on the above– There is plenty of language in the bill that would allow free use of the work for “a nonprofit educational institution, library, or archives, or a public broadcasting entity, provided the use resulted in no direct or indirect “commercial advantage”, the usages was primarily educational, religious, or charitable in nature” and “after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement.” This is also mostly redundant, as there are “Fair Use” exceptions to copyright law that allow for education and non-profit use of copyrighted works, although the inclusion of library and archives in the language expands on fair use a bit.

What it Means

Rather than go through every tiny aspect of the bill(s), I’ll address some of the most talked about concerns as they actually pertain to the bill, then offer some of the good an bad points of it. Finally, I’ll offer my final opinion of bill after having studied this 2008 version.

1. “I am going to lose the copyrights to all my work! Anyone can use my work for free as long as they prove they tried to find me!”

There is no language in this bill that in any way alters the actual copyrights a creator has over their work. Even if all the requirements for considering a work “orphaned” are fulfilled by the infringer, if the creator does come forward the infringer will have to pay “reasonable compensation” to them. There is nothing a COMMERCIAL infringer can do to use a creator’s work for free, just so long as the creator catches them using it. That is no different than it is under current law today… it’s still the responsibility of the creator to catch infringers in the act. In the case of use for educational purposes etc. of a non-commercial nature, they can use the image for free but must stop using it if the infringer so demands.

2. “I have to spend money to privately register my work to protect myself.”

Under current copyright law you as a creator have automatic copyrights for your lifetime plus 70 years on any work you create the moment it is created (95 years for corporate owned property). You do not need to register it with anyone (although to collect damages you must have registered it with the copyright office, and within 3 months of creation). There is no specific language in the bill that would require you as a creator to register your work to prevent it from being considered an orphan work. However, the bill does specifically include in their definition of “Materials and Standards” terms like “private databases” and “technology tools and expert assistance, including resources for which a charge or subscription fee is imposed” which also means that fees can be charged to those wanting to check a private database as well as be registered with one. There is also a mention of the “establishment of a database” by the Register of Copyrights: “The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection”. No mention of what inclusion in this database will cost the creators. There is no specific language that says a creator MUST be registered in order to protect their copyright. Right now the bill leaves the definition of a “qualified search” up to the Register of Copyrights Office… apparently “to be determined”. That is not a very settling thought, and this may be something a few court cases would need to set a precedent for. As with any law, the intent of the law can be very different than the effect of the law via how courts interpret the law.

3. “My work is automatically orphaned the minute it’s published or released.”

Sorry but that is just plain silly. Published work includes bylines, magazines have records of their contributors, websites have people who create the content and maintain them, creative works are usually signed. Yes, a “reasonably diligent search” is not very well defined, but most work created today would be fairly easy to find the creator of. It’s the older work from the last 40 to 50 years that is a problem, and those are in many cases truly orphaned works. There is specific language in the bill that states the lack of identifying information (i.e. a signature or credit) is not sufficient to meet the criteria of an orphaned work. Even so, the use of even truly orphaned works for commercial purposes is a serious issue.

4. “I lose control of my work.”

Actually that is true to a point. You no longer can control who uses your work as long as they comply with the requirements of declaring a work as an orphan. How so? Say some magazine publisher finds a caricature I did of somebody on the web, not via my site but from someone else’s where they removed or cropped out my signature or copyright notice. No “qualified search” found me but they went thorough the appropriate steps. I somehow discover the infringement and demand compensation, which say I get. Let’s even say it’s a fair amount. So what is the problem with that? What if the magazine is a nasty porno mag called “Dirty, Slutty MILFS”? What if it’s some drug promoting alternative rag? What if it’s used by a tobacco company in an ad selling cigarettes? I would never allow my work to be used in any of those kinds of cases for any amount of money, yet there is NO LANGUAGE in the Orphan Works Act that allows me to sue them for such use against my wishes for anything other than a “reasonable compensation”. There is also no way for me to force them to desist using it once published, is there? I just lost control of my own work. Likely? Maybe not. Possible? Most definitely.

The Bill’s Good Points-

I think the authors of the bill made some efforts to try and curb the possible abuse of the protection it allows by requiring those wishing to use a work as an orphaned work to complete a series of specific steps in order to do so, and specifically saying if any of them are not met to the letter they have no right to protection under the Orphan Works Act. It take a lot more than just finding an image online and doing a quick google search for the owner to be able to call it an orphaned work. There is also language in the bill that specifically states that in the event of a court battle over an orphan works case, if the work is “registered” the court can take into account the value (if any) added by that registration. That is of course meaningless or meaningful depending on what a court might decide.

The Bill’s Bad Points-

There are plenty. Despite a valiant attempt, there is no way to define a “qualified search”. How can one search for a piece of work with no quantifiable title? Books or stories with titles and publication dates are easy, but visual works? “Funny picture of a fat guy with glasses” is probably not going to result in a positive result in language like requiring that “the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself” or ” the infringer employed the applicable best practices maintained by the Register of Copyrights” don’t define anything. A lot hinges on the definition of “qualified search”. Right now there is no language that specifies that a creator MUST register their work with any database, private or not, but under the current bill that is determined separately by the Register of Copyrights… so who knows what that criteria may end up being?

The “reasonable compensation” definition is also very vague. Who decides what is reasonable? Do I as an illustrator get to show the average price I get for a similar usage, and get paid that amount, or does the magazine get to demonstrate what they typically pay for such a usage and pay that amount. That can vary wildly. I often turn down jobs that pay too little for an illustration. Under this bill, they need only show they could not find me under a someone else’s definition of a reasonable search, and then someone else can decide what I should be paid for my work? According to this bill, yes and yes.

There are many other issues here as well. I recommend you read the bills for yourself.

The Bottom Line

Overall I recognize the desire to preserve orphaned works for posterity, and to use them for historical, educational and artistic enrichments programs. I also think that the owners of things like actual photographs be allowed to make personal copies of the pictures just like you are allowed to make a copy of a CD you purchased for your personal use. Beyond that, however, I do not see any need for this kind of legislation. Better to redefine the limits of fair use, and allow for these kinds of uses of orphaned works and non-orphaned works for that matter.

As an illustrator, the ability to use even legitimate orphaned works for COMMERCIAL USE is very damaging to my ability to earn a living. Imagine if I was a car dealer and wanted to sell cars, but my customers were suddenly allowed to go out into the streets and find whatever cars they thought were abandoned and drive them for nothing, or at worst for what they might have paid for them in the first place. Do you think that would have an effect on my car sales? absolutely. Do you think that action would encourage car manufacturers to make more new cars? No, but proponents of this bill argue it somehow encourages the creation of new artistic works… I cannot work out how they argue that fact.

Let set aside the fact that some non-orphaned works might be infringed upon and gotten away with doing so… that happens every day regardless of whether this bill passes or not. Allowing commercial publishers and media content providers to use actual orphaned works in place of paying creators to create new works will create very real damage to the livelihood of creators and stifle the creation of new works.

If I was an unscrupulous businessman, I might use this orphan works law to create a giant stock book full of legitimate orphaned works that I would categorize and make available to publishers and content users for a subscription fee. There is nothing in this bill that would prevent that. I would not be selling them the copyrights for using the images, but having them pay for my organization of the works and for my research into their legitimate orphan status. Every orphan work that is used in every publication, book or other content media is one less job some creator was paid for creating. Anybody that does not believe that is going to be damaging to a creator’s livelihood and to the creation of new works is fooling themselves.

Then there is the issue I mentioned earlier about the work being used by “clients” you would never have allowed to use it in the first place, like porno magazines or tobacco companies. They can use your work and only be forced to pay you “reasonable compensation”… no way to have them remove it after the fact.

The Orphan Works Act is a misguided attempt to simply expand on exisiting fair use laws. The addressing of the definition of “Fair Use’ and how those laws apply to copyright is a much better resolution to this issue.