Protest the Orphan Works Bills

The Orphan Works Bills will remove copyright from our works and works we’ve done on behalf of clients. If the bills pass, work that you copyrighted simply by publishing it will no longer be protected. To try to protect it, you will have to retroactively file copyright paperwork for everything you’ve published in all the years you’ve been working. Client projects, too. Salient summary:

The Orphan Works Act defines an “orphan work” as any copyrighted work whose author any infringer says he is unable to locate with what the infringer himself decides has been a “reasonably diligent search.” In a radical departure from existing copyright law and business practice, the U.S. Copyright Office has proposed that Congress grant such infringers freedom to ignore the rights of the author and use the work for any purpose, including commercial usage.

“Orphaned” works will be made legally available for use by commercial interests, even when the copyright holder is alive, in business, and licensing the work.

You think your work gets stolen now? Wait ’til infringement becomes the law of the land.

Fight back. For U.S. artists and writers, this site makes it easy to communicate with members of Congress. And I mean sign-your-name-and-click-send-easy. The site also provides help for international artists and colleagues overseas.

[tags]copyright, orphaned works[/tags]

43 thoughts on “Protest the Orphan Works Bills

  1. I’m appalled.

    And that’s saying a lot, given that I am one of those free culture wonks who firmly believes we need a good overhaul of copyright law. But I actually mean a good overhaul. This is ill-conceived and overreaching.

    I guess I’m both appalled and speechless, which doesn’t happen often. I can’t even find the words to express my dismay.

  2. It’s amazing how little press this has gotten and it’s in the meantime being fast-tracked through congress. It’s creepy and so harmful to the people out there creating things for a living.

    A month or two ago I wrote my congressmen and women about this and a couple of them had the decency to at least write me back, even though it was a “I’m glad to hear you’re concerned about copyright issues, as I am too” type of letter.

    I’m all for actual abandoned works becoming public domain, but this is such a backwards and wrong way to go about it.

  3. Wow; very interesting. I guess I am going to stop leaving those napkins in bars with unique creative works on them — that is without signing them first.

    I feel like this move is one centered around the popularity of web based search — the assumption being it is easier for the masses to find anything; might be a misguided assumption in this case.

    IP laws are so blurry and complex; this ultimately doesn’t change much for the small web based freelancer who will loose almost any battle if the other guy is willing to invest more money into legal fees than you are.

  4. Things really aren’t changing as much as many people think with this bill: as it stands currently, unless you register you’re only entitled to actual damages. Yep, that’s right, if you’re, say, a photographer and someone rips off your images, unless you’ve registered them you can only sue for what it would’ve cost to licence them legitimately. That’s crazy, but that’s how US copyright law lies at the moment – Duncan Davidson covered this. Thankfully, here in Britain registration isn’t necessary for proper protection to be afforded.

    There’s an informed and interesting discussion over at BoingBoing on the Orphan Works Bill which should hopefully clear up a few of the more glaring misconceptions.

    Nitpicking your highlighted quote, an actual qualifying diligent and documented search isn’t something the ‘infringer himself decides’, it’d be determined by the court interpreting §2 §514 (b)(2) ‘REQUIREMENTS FOR SEARCHES’. If the infringer didn’t document thoroughly and search extensively, they’d be liable for punitive damages and costs (the limitation of damages only applies if they can prove they did a qualifying search).

    I don’t think it’s a bad law per se, more that it’s a plaster trying to fix a system where terms are already far, far too long. Orphaned works simply wouldn’t be an issue if copyright was a reasonable duration (e.g. 14+14 years) – not that this will ever happen, as large corporations continue to successfully lobby for ‘harmonisation’ and retroactive extensions in a continual cycle that has rendered the public domain irrelevant to the generations that would benefit most from it. Trying to redress this balance is admirable, but sadly misplaced.

  5. Mr. Zeldman, you’re wrong.

    Orphan works are a bug in copyright law: they works which cannot be licensed, traded or cited in research because holder is unable to be found. Adding a copyright to Web work is as simple as adding “Copyright © 1995–2008 L. Jeffrey Zeldman.” to the bottom of your Web Page, stylesheet, etc. Orphan works prevent libraries and research institutes from operating, and the law as defined provides a clear process for copyright holders to assert their rights against infringers.

    The Electronic Frontier Foundation has some good write ups on the Orphan Works and why this hole in copyright law needs to be filled.

    A Real-Life Orphan Works Dilemma
    Release the Orphan Works!

  6. In the current Open Source web, I’d be curious to find out how effective things like creative commons is for copyrighting something as it pertains to yelling “you stole that from me!”

  7. While I can understand the concern this proposed law has generated. I have to say I don’t agree with you. Something like 60% of the media in existence right now is in limbo. While I agree that creative content which is still generating revenue should be protected, content which is not in use should be moved to the public domain. Disney was created out of the public domain – without access to public domain content there will be no more Disney’s. If we lock everything up our culture will stagnate and die.

  8. Curious. But who is behind this? Nobody seems to know. The speculation is that it’s companies like Getty and Corbis, who would stand to gain a lot of “orphan works” whose owners “cannot be found (diligently)” and companies like Google (so.. Google, then) who want to index all the information in the universe. I’m just trying to work out why it is getting such a free ride.

    In the absence of a mysterious special interest, I can only assume that a few well-meaning culture mavens put it together.. wrongly.

    So some research: EFF likes it, NYT shows an argument for an orphan works solution, here’s a site from an attorney/lobbyist that is something to do with it, here’s one against it and here’s another eloquent blog post about it.

    The last link has a lively discussion in the comments which not only brings up all sorts of good points but also has the phrase “otter bullshit” which may be the best thing I’ve read all day.

    As far as I can see, there are two major flaws in the approach:
    – The term “diligent search” is far too vague and open to interpretation
    – The concept of a searchable “database of pictorial, graphic, and sculptural works” is mind-bogglingly complicated from a technical standpoint, and the fact that the impetus is on the creator to backfill the database – at a price, mind – puts a completely unfair burden on the creator.

    I agree that there is a need (or a cultural obligation, perhaps) to deal with copyrighted material that is truly in limbo, but this is a wrong-headed approach to that problem, and must be questioned.

  9. If we lock everything up our culture will stagnate and die.

    Totally. But judging by Jeffrey’s description above, the Orphan Works Bill unlocks everything by default, and makes it difficult for people to legitimately lock up their stuff.

    Maybe if registration was only required once works reached a certain age (e.g. life of the author plus 70 years).

  10. @Lome – as much as I see your point. This is a whole other bag of snakes. I don’t know how far reaching this bill is planning to reach but this will negatively affect way too creative professionals and starving artists.

    Shocked, that’s all I can say. I could see how they came up with the idea though, ill planned and all. I expect this not to reach light of day though. Someone with a serious say in the matter will have a light bulb go off in their head and stop this.

  11. I’m fairly certain that the Orphan Works Bill will not require you to “retroactively file copyright paperwork” to protect your work and the ambiguity of language like “reasonably diligent search” seems to me to be in keeping with the similar ambiguity behind Fair Use.

    For a little more nuance on this issue I suggest reading this
    statement from the Electronic Frontier Foundation which supports the Orphan Works Bill as well as this article by Lawrence Lessig which raises some skepticism.

  12. Has anyone who commented here actually knows what it takes to REALLY copyright something? If I am publishing something like a blog which is a serial publication I am required to send the copyright office a fee every time I publish. If I design a web page then I can send a fee to the copyright folks for the design which is a static work and not serialized content. That’s the basics.

    By ACTUALLY registering with the copyright office you are then being protected by the reasonable search definition because the search begins and ends at the copyright office.
    Patent searches work the same way. Simply putting copyright on your blog or any other work does not do a damn thing to protect you. The orphaned works bill seeks to clarify what is or is not actually copyrighted. So the deal is this, no registration by the rules means no REAL copyright.

    So if you have been designing for clients and have not been registering including paying the fee to the copyright office you are leaving yourself AND your client open to litigation to prove you are the owner. Even if you prove it you are still out
    the legal fees hassle time for you and your CLIENT. Like everything else in business nothing is free. Just register the work. I’m surprised the design community has not embraced
    Open Source as an alternative.

    Just another case of well formed but not valid.

  13. In response to Stef’s comment above…

    Creators of original content have been working under good faith for 30 years that our work would be protected by copyright law whether or not we register it or put copyright notice on it. Most clients today require that we do not sign our work and no copyright notice is given. Many creators of content haven’t seen a massive problem with this because the current passive copyright law says the work is ours. Under the copyright reform bills this will all change.

    Why is it that today regular people do not see their personal/family/amateur snapshots they’ve shared on the internet become plastered all over commercials? Because the individual owns the copyright, there are model release forms required (to show someone’s likeness) and (most) corporate advertisers know better than to violate that. Under the proposed law that will all change. We’ll see a glut of amateur images plastered all over the place, people’s privacy will be breached and we’ll see fabulous creative works- currently managed by rightsholders- be swept up into a cheap, continually renewed recycling system. The supply of visual images to the commercial and nonprofit markets would be so overwhelming that there would be a minuscule demand for new work. This scenario would drive the majority of creative people out of business.

    Congress sold these bills as being good for libraries, museums and archives. It’s a sham.

    Yes, Google, Corbis, Getty and other friends have been lobbying hard for it. This is not a secret. If you search for ‘Google and “Orphan Works” you’ll find a letter of recommendation Google sent to the Copyright Office outlining their vision of an ‘orphan works’ law. Google (and others) donated around a million dollars to the Library of Congress (where the Copyright Office resides). Interesting fact, no?

    Here’s some Q&A from The Illustrators’ Partnership of America

    Q: But what if you do sue an infringer and win? Then can’t the court award you full costs, including a reasonable attorney’s fee?
    A: In theory, yes. But here’s how a full-time litigator, advising us in 2006, said it would happen in real life:

    “Under current law, infringement cases follow two scenarios:

    “Scenario One: If a copyright owner has registered his copyright, he can get statutory damages and attorneys fees. As a result, it is relatively easy to find a contingency fee lawyer to take these cases. (That’s because the copyright owner doesn’t have to pay the lawyer; the infringer does). In addition, the copyright owner usually finds that he gets more in settlement than he pays in legal fees, if he decides to hire an hourly-rate lawyer.

    “Scenario Two: If a copyright owner has NOT registered his copyright, he can only get actual damages. In these cases, it is usually impossible to find a contingency fee lawyer [because in these cases, the copyright owner will have to pay – and may not be able to]. Moreover, it is often not wise for the copyright owner to litigate these cases anyway, because the settlement value is so small.

    “Under the orphan works legislation, ALL infringement scenarios are, as a practical matter, Scenario Two.”

    Q: The Copyright Office says that user certainty is “essential to encouraging the use of the [orphaned] work.” -Page 7/Orphan Works Report
    A: The issue of certainty for the user/infringer is the lynchpin of the whole Orphan Works issue, so let’s take it step-by-step:

    1. Congress can’t pass a law to make you register your work or put copyright symbols on it because these formalities would violate the obligations and commitments of the United States under the international Berne Copyright Convention:

    Berne/Article 5(2) “The enjoyment and the exercise of these rights shall not be subject to any formality (emphasis added).”

    2. So because Congress can’t impose formalities on you, the Copyright Office crafted a recommendation that would expose your work to infringement if you didn’t impose formalities on yourself.

    3. They say this “limitation on remedies” is necessary to guarantee “certainty” to the good faith infringer of your work.

    4. But uncertainty is the only mechanism the law gives you to protect your work from thieves.

    5. There is no Copyright Bureau of Investigation; no Copyright Police Force.

    6. You are responsible for policing your own copyrights – and penalties for infringement are the only weapon the law gives you.

    7. Fact: most creative work is never registered with the Copyright Office and most infringers know it. So

    8. If an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it probably wasn’t registered anyway.

    9. He may guess correctly but – he can’t be sure – and this uncertainty is your key safeguard against unjust infringement, because

    10. If an bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.

    11. This is a powerful incentive for a thief not to risk stealing our work.

    12. So it turns out that in the real world, uncertainty in the mind of a bad actor is the only weapon you have to protect your copyright. Remove that uncertainty and you remove the only realistic safeguard the law provides.

    Let’s say that again: Without uncertainty, thieves can reasonably gamble that their thefts may never be detected, the work they steal won’t be registered, the owners of the stolen property will never find them and – if once in a while they do get caught – they can simply say the property had no name on it when they found it and dare you to sue them. From that point on, the risk will be all yours.

  14. Although I’m Canadian, I thought this topic interesting enough to delve a little deeper. However, I think your concern may be unnecessary. You’ve quoted the “reasonably diligent search” and have assumed this to mean the searching of a govt-run copyright database and that everybody would have to file a copyright in order to be protected.

    In reading the bill, there seems to be no direct correlation. The issue is finding the author of said works. In other words, “hey look, I’m on and at the bottom it says that L. Jeffrey Zeldman owns the copyright.” Look at that…I’ve searched and have located the owner of the copyright. Notice in the bill that a search is qualified as diligent if it follows best practices laid out by the Copyright Office. They have a page that talks about this some more and it talks more of trying to locate an author of a work by means outside of the Copyright database (such as public databases or databases from other countries). The goal is to match the copyright work with the copyright owner and every web site would have an implied owner: the owner of the web site, of course.

    Now, what if somebody comes across this site and isn’t sure if you actually own the copyright and wants to know whether they can use it for their own purposes (like, maybe one of the photos in the header). If a person tried to contact you but the emails bounced back and they’ve tried every resource to get ahold of you (looked at the domain registration, etc), then the bill still seems to stipulate that the person using the orphaned work would still need to include attribution. (making it more likely that you’d come across such orphaned works if you do any ego-surfing)

    From what I can tell, you’re still equally protected under this new bill. But IANAL.

  15. Snook, you’re speaking in extremely specific cases of web sites and other things you can actually put a copyright on. Part of my concern with this isn’t just my website design, but as an example, a photo of my kids. Someone could search google, find an image of my kids and use it on a brochure or billboard advertising something that goes against everything we believe, and potentially worse, all without my knowledge, much less permission. They could take a logo i design for a client and put it on a coffee mug and sell it. The odds are against me ever finding out they used my work, and even if I did, the new law would say I would have to:

    1. track down (by myself) who stole the photo
    2. take them to court (on my own dime)
    3. prove I created the work (they could lie and say they did it)
    4. hope and pray i get a nice judge who would favor me over the thief
    5. cross my fingers and wait

    After all that, it would be unlikely I would come out with anything at all, and would likely be in the hole more than when I started, both in time, energy and money, all because of a poorly written bill.

    I say go ahead and write a bill, change the law, but not like this. This isn’t clear enough to protect my rights.

    And as far as having to register copyright, if that is the way the law is currently written (I’ve always been told you own your creation the moment it is in any tangible form), then that’s just wrong. It’s not right that someone can catch a glimpse of something I’ve created, anything, and just take it as their own. No one should ever have to pay money and fill out forms with the government to prove they created something and own it.

    Sorry, Jeffrey, I’m done ranting. :)

  16. Natalie, there’s nothing stopping somebody right now from doing all the things that you’ve mentioned and I don’t see the new law changing that. My understanding of the bill says that the process of copyright ownership doesn’t change.

    All the bill seems to say is that the “remedies for infringement shall be limited” only if the user performed a search, couldn’t find the owner, filed a notice of use, provided attribution if known (such as use of assets from a web site whose owner couldn’t be reached), and if taken to court has to supply the court with every effort taken to locate the copyright owner.

    So, if I found a photo of your kids on the street that was particular striking (as I’m sure your kids are ;) ) and didn’t have your name anywhere on it, did I do everything to locate who owned the photo? And when I used the photo, I’d have to file a notice of use with the govt.

    Again, I don’t see the issue. Maybe there’s a use case I’m missing.

  17. “Hey, look, I’m on a sleazy link farm site that stole an article written by Jonathan Snook and removed Jonathan’s name and copyright information from the article. I don’t know the article is stolen (or at least I can plausibly claim not to know). I don’t know the site is a sleazy link farm site (or at least I can plausibly claim not to know). The design of the site leads me to believe the site is professional (the design is stolen but I don’t necessarily know that). Well, there’s no author’s name on this article and no copyright information. I think I’ll use this article on our company’s marketing site, since it fits right into our area of specialization.”

  18. “Hey, look, I’m on a sleazy link farm site that stole an article written by Jonathan Snook and removed Jonathan’s name and copyright information from the article. I don’t know the article is stolen (or at least I can plausibly claim not to know). I don’t know the site is a sleazy link farm site (or at least I can plausibly claim not to know). The design of the site leads me to believe the site is professional (the design is stolen but I don’t necessarily know that). Well, there’s no author’s name on this article and no copyright information. I think I’ll use this article on our company’s marketing site, since it fits right into our area of specialization.”


  19. No surprise that the bill is sponsored by Howard Berman. He’s been the pet congressman of the entertainment industry for some time and you can usually find his name on bills that promote the IP interests of large entertainment companies at the expense of the public good.

  20. Jeffrey (and Mike D), isn’t that example just as possible today – and just as illegal? “Hey, look, I’m on a sleazy link farm site that stole an article written by Jonathan Snook and removed Jonathan’s name and copyright information from the article, and posted it under Creative Commons. [etc etc]”.

  21. Jeffrey (and Mike D), say that were true, no copyright has been transferred or lost. Assuming the person who has inadvertently appropriated the copyrighted works was contacted, the only issue is the “limitation on remedies” which, if the infringer made money off of the copyrighted works, would have to pay those proceeds to the copyright owner.

    “if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.”

    In other words, if somebody has done their due diligence, they can’t get sued if the work was used. I just don’t see where in this that copyright is being removed. It may make things slightly easier for people to make use of copyrighted works since there’s less fear of reprisal but I think that’s reaching.

  22. I have two concerns:

    1. Does anybody have a link to the actual bill and not a propaganda site railing for or against it? Has anybody here actually read the bill firsthand? I haven’t, but everytime I hear people reacting strongly against legislation, what they’re reacting against, is almost always not what the bill says.

    Ah, here’s a link to the actual bill

    2. The only difference between the ‘sleazy farm link’ example now and if the bill passes is your supposed right to bring legal action. I have a hard time believing that passing this bill will make any legal action concerning the web and intellectual ‘property’ more or less effective. Maybe it will in theory, but in practice, the issues are pretty dang hazy.

  23. Jeffrey (and Mike D), isn’t that example just as possible today – and just as illegal? “Hey, look, I’m on a sleazy link farm site that stole an article written by Jonathan Snook and removed Jonathan’s name and copyright information from the article, and posted it under Creative Commons. [etc etc]“.

    If the law passes it will not be illegal.

  24. Having read through the bill myself, Jeffrey, I disagree with the sentiment of the Capwiz article and your conclusion that this would make it illegal. The only conclusion that I can come to is that you wouldn’t be able to claim court costs if you sued. And that you still have the right to recover any costs that a company earns in using your copyrighted material.

  25. Back in May I heard back from Congressman Olver on this issue:

    Like you, I am concerned that H.R. 5889 would place the burden on the artists to register their work and that it would lessen consequences to those who violated copyrights and damaged artists’ careers. Creators deserve protections and legal recourse if their work has been stolen, and any reform of the copyright system must balance issues of outdated or indiscriminate copyrighting with the very real concerns of artists protecting their livelihood. (…) Please be assured that I will continue to monitor this issue with your thoughts in mind.

    Indiscriminate copyrighting? Huh? Well, I’m glad I’ve got a friend on the ‘Hill.

    It all seems to me to be a solution in search of a problem (sound familiar?). Is there something broken about current copyright law? Moreover, aren’t there more pressing issues that our representatives should be concerning themselves with?

  26. Having worked for a huge international museum of photography for the last 2 years, let me tell you: copyright is the absolute biggest hurdle in the way of us accomplishing out institutional mission of exposing the world to our collections.

    The less copyright the better. In fact, I say we return to the founders copyright length.. what is it, 14 years?

    Heck with 70 – 120 year copyright protection (sometimes not even at the time of the work, at the arbitrary time of the authors death)

    And why should IP extend beyond the lifetime of the author?

    I realize orphan works and copyright length are two separate issues, but its all intertwined into the system we have here, which, if it continues to exist like this, will keep most of you from ever seeing the treasures owned by cultural heritage institutions.

  27. FYI: The link above posted by JakeT is the Orphaned Works Act of 2006. The Orphaned Works Act 0f 2008 is much farther reaching, and provides more protections to the infringer.

    Also, the 2008 bill has a different definition of a reasonable search which seems to require people to register their copyrights to ensure that they are protected. (Otherwise, how are they going to be in the copyright database?). It is my understanding that, as current copyright law stands, you can register your copyright even after it has been infringed upon and still sue the infringer. (It has to be registered so you can sue.) This is because, of course, the copyright is created when you create the work. The bill effectively makes this implied copyright useless while not explicitly doing away with it. That in itself is enough to make this bill dangerous.

    By the way, I don’t buy the party-line that this bill is good for educational institutions and libraries. They are already covered under fair use.

  28. Agreed: extended copyright is preventing the preservation and dissemination of our cultural heritage. It’s obscene, and tragic, and we owe it all to Mickey Mouse and his late friend in congress.

    But as you say, that is a separate matter.

  29. i personally hate copyrighting. i wish there is no copyrighting at all and everything becomes for free. this is just my opinion

    Appalling. It makes me sick that you’re even allowed to “design” and “sell” artistic services to others. You obviously don’t have anything worth a copyright.

  30. Paul
    i Was just joking. i was trying to be sarcastic. sorry if i offended you in anyway. this was not my intentions.

  31. I feel compelled to respond to this thread for a few reasons, all of which are about how this bill exposes some fundamental problems with our current system, not of law, but of practice. The first reason is more to vent about the way our government works. I.E. “it’s government’s job to screw us and our job to take it.” So today it’s creatives they’re screwing, tomorrow it’ll be immigrants, the day after that it will be people who don’t recycle. Anything to collect a fine, especially if they can receive “gifts” for doing it. There’s your reason for the fast track. It makes money for the government period. I’ve decided to accept that we’re ruled by a committee of monarchs and we have about as much say in what is done with the money they take from us as we would in medieval times. (venting done, thank you)

    The second reason I’m responding is to express my desire to see the marketing / advertising world to change. Why don’t agencies openly take credit for the work they do? If this were the norm, it would be easier to shop for firms to work with and the client could wear the firm’s brand with pride. Why should clients entrust their brands with individuals who don’t market themselves to the fullest? We need to stop seeing this client – agency relationship as a master-servant relationship and start seeing it as a partnership. What’s good for our client is good for our reputation. With our brand on the media, there is no question of authorship.

    As for the argument of “I found this work that was stolen and I couldn’t find the real author, therefore I am not culpable”, the person who stole the work to begin with is the person who should be prosecuted and should be documented in the second infringer’s “research”. Just as receiving stolen goods is a crime, using stolen works should also be and the first infringer is still to be tried. As for an individual’s likeness. There is no disputing this. You are who you are. If someone uses your likeness without your permission and doesn’t have a release, this is a violation of your privacy not the copyright you own on your likeness. The first court these go to may read the letter of the law as strictly as the nay-sayers above, but on appeal, no higher court would rule for either infringer mentioned above. This law is not meant to defend the theft of works that are a year old. It is meant for books that are out of print from publishers that are out of business written by people who cannot be found. Judges are people. They will interpret the law and it is their interpretation that sets precedent for the courts. (pessimists see reason one above)

  32. I’m the Senior Editor for I oppose the Orphan Works bill in its current form. The rights of artists must be defended. I invited Brad Holland to respond to an interview I had with Alex Curtis of Public Knowledge. Feel free to post excerpts if you wish. It is a very long post– but is worth the read.

    Warm regards,

    Brian Sherwin
    Senior Editor / Myartspace Blog

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