Stop the U.S. Orphan Works Act

Jan 14, 2009 by Matt | Posted in General 27 Comments

A bill called the “Orphan Works Act” is pending in Congress. If approved, the bill would adversely affect U.S. copyright law, and cause major problems for individuals.

Currently, in the United States, a creative work such as a blog post, web design, podcast, video, or photo is protected by Copyright as soon as you create it, and until 100 years after you die. If you are unsure of the workings of U.S. Copyright, see this primer for further information.

If the Orphan Works Act is passed, all of your copyright holdings will be retroactively “orphaned” and lose their associated protections. You will have to register each of them with the federal Copyright Office in order to regain said protection. In addition, any future work of yours will have to be registered as well. This registration will cost a fee, and will likely be too expensive for most individuals to pay.

So essentially every bit of creative work you have ever done, or will do, would pretty much open for anybody to use however they wish. It would be okay for scrapers to take your blog content. Disney could take that song you wrote and use it in a movie without paying you.

It’s not good. This act takes the ability to protect your creative work away, while allowing the large media companies to plunder your works at will.

If you publish anything on the internet, you will be affected by this. Can you afford to pay $50 (assuming the registration fee is that cheap) for every post on your blog, for the design of your blog, for every single creative work that you release to the public?

Even if you don’t live in the United States, this will affect you. It will hurt the internet as a whole. Maybe you have web-friends in the U.S. who are designers, bloggers, novelists, or whatever. Do your part and raise awareness of this issue.

You can email your local politicians with the form letters here.

Source: Corporate Theft: The Orphan Works Art Bill Re-introduced

It is very hard to find comprehensive information on this sort of thing, so correct me if I’m wrong on anything.

    • http://www.kastedstudios.com Dan B. Lee

      Of course I'm not interested in making it difficult or expensive to secure your creative work, but its important to note why this act is trying to be pushed through Congress. The name of the act says it all. Because copy written material is protected for so long, much content has to discarded and cannot be used in things like documentary movies and other informative narratives and media. The reason: people cannot locate the copyright owner after a full scale search.

      The important thing to focus on is the "diligent search" aspect. It's not as if they will just straight up copy and paste all of your work and call it their own after this Act is passed. People will still be required to find the copyright owner by exhausting all means necessary in locating them. A good "other side of the story" write up can be found here:

      http://www.copyright.gov/orphan/

      Reading that article, I can see why they would want this act passed, I'm just not sure they need to be this intrusive. The least amount of infringement is better in my opinion. And if they can't come up with a bullet proof process of monitoring someone's ability to locate a copyright owner then I'm not sure the Act has merit.

      • http://www.intensedebate.com/people/redwall_hp redwall_hp

        I'm much more in favor of limiting the duration of copyright instead, perhaps to 25-30 years with the option to renew., as Steven suggests below.

      • The Teri

        The "diligent search" aspect only applies to work which have a copy write. The bill would wipe out all current copywrite. The front stance of opening up archival works for documentary purposes is a good one but it's not enough to endanger the lively hood or artist.

        Either way for the moment it doesn't matter considering this bill has been tabled since a new Congressional session has started.

    • http://stevenclark.com.au Steven Clark

      Thanks for posting this Matt, its always interesting to see how the little guy gets continually screwed by Disney etc… as an author, photographer, designer I personally would never have the money to register even a token few items. The scarey part of that bill is, as an Australian, it will undoubtedly make it's way into our laws here too if it makes it into US law.

      And who determines who can't be found? Why not just pull the life plus 70 years copyright law back to about 30 years and then we'll have a public domain… it's almost like they're saying hey we're losing our public domain due to life plus 70 years so we'll just take that away from most poor people.

      Disney is another maddening story. How many public domain songs / tunes did Disney use at the time? Yet they aren't willing to let go a shilling and every time Mickey Mouse comes close to public domain we get extended laws. Anyway, big subject and huge in our industry especially. Thanks for sharing.

      • http://intensedebate.com/people/redwall_hp redwall_hp

        I like your thinking, Steven. The only reason this is really necessary is because of the ridiculously long period that copyright protection lasts these days.

        I imagine Mark Twain is turning in his grave. His thinking was that copyright law should protect a work's creator so he or she could have a steady income from it, and the creators' children for a time…but grandchildren should have to work for their own money. I doubt he would like the way things have turned out, what with corporations like Disney keeping the rights to a work for so long.

        Copyright law needs some major reform, not something that will end up, whether intentionally not, hurting the little guy.

    • http://jewellery.pearlsocean.com Lee Redmond

      I just found your blog following a link, it’s nice, but I hope you can update it more often, hehe, because the information that you have here is quite interesting. Keep going!

      • http://intensedebate.com/people/redwall_hp redwall_hp

        I already have enough trouble keeping up with my current schedule (1 post/day). :)

    • Taz

      Have you been following the Shepard Fairey case? What do you think of this?

      http://www.myartspace.com/blog.....-lost-la...

      We are all doomed if that is considered fair use! Sucks that it is the AP but it could have been another artist just as easy.This is exactly why the orphan works bill would not work. Shepard Fairey could use your image and throw you pennies if it were passed!

      • http://intensedebate.com/people/redwall_hp redwall_hp

        I hadn't heard of that… Thanks for mentioning it.

    • Andy

      6 misconceptions about the Orphan Work Act
      http://maradydd.livejournal.com/374886.html?threa…

    • John

      I support the Orphan Works legislation. Think about it folks. Do you realize, you cannot (for example) put your kindergarten class photo on Facebook without violating current copyright law? You cannot put a photo of your grandparents who just arrived on Ellis Island in your genealogy project? Because some dead photographer who doesn't care, or even remember, took the photos?

      • http://intensedebate.com/people/redwall_hp redwall_hp

        "You cannot put a photo of your grandparents who just arrived on Ellis Island in your genealogy project? Because some dead photographer who doesn't care, or even remember, took the photos?"

        Actually, you probably can. If the photo was taken before 1930-something-or-other it's public domain. Back then the copyright term was much shorter.

        We don't need the Orphan Works Act, we need reform of draconian copyright law. We need better fair use laws, shorter copyright terms, etc. Mark Twain had some good views on the subject. (You should benefit from your work, and your children, but your grandchildren should have to do something for themselves.) That kindergarten class photo? Copyright law should allow you to use it for noncommercial uses.

    • http://yourartdirector.blogspot.com/ Kenton Smith

      What if someone sees an illustration on my portfolio site and innocently copies it for their vacation blog. They shouldn't do it, but we all know this happens. They stop updating the blog, time goes by and they change their email. Someone looking for a picture for their project comes across my image and can't find contact information for anyone connected to the blog? They send a few emails, maybe look up a name, no luck. According to this law they can now take my image and do anything they want. I don’t think someone should be able to do that after a feeble attempt to find the owner. What if they put it on a product and make money, worse than that, what if they take the image and use it in connection something I don't agree with?

      Sure maybe the copyright laws are too long, but then the famous painters grandkids that can still make some money licensing the Grandfathers paintings might disagree.

      This is just another example of how creativity is not valued.

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    • http://www.tombyrne.com Tom

      Perhaps we can do something to stop the Orphan works bill through the courts. Hopefully so but money and lobbying are very powerful and a lot of large companies have a strong vested interest in the version being proposed.

      There is a need for a version of the orphan works bill and Google among others are big supporters of the proposal. However everyone agrees they are going too far in their demands.

      They aren't listening to the creators objections and the extent of the bill being proposed plus Googles recent grabbing of things that are not theirs (tied down), makes me think that we might be partly to blame again. By using their search engine we are giving them power.

      So for the hell of it, if you are using Firefox as a browser, you can delete Google as a search engine (which will be noticed). It's like voting.

      Bing is owned by Microsoft who are also pushing the bill through. There are a list of search engines that you can install listed here:

      [https://addons.mozilla.org/en-US/firefox/browse/t… N5?_t=tracking_disc ]

      It's possible to delete both Google and Bing from your search engine selection which would definitely get google etc, to sit up and pay attention.

      Goodsearch is a nice alternative
      http://www.goodsearch.com/

      https://addons.mozilla.org/en-US/firefox/addon/96…

      This is a passively dynamic way of sending a message. It doesn't cost anything, the search engines are easy to install and a change is as good as a rest. I've been using Good search for a week and it's fine.

      Cheers
      Tom

      Feel free to pass this on.

      • http://intensedebate.com/people/redwall_hp redwall_hp

        No thank you. I won't cripple myself by using a lesser tool, just to attempt to send a message to an otherwise good company that's only supporting a bill. Even a million people ceasing to use Google (which is quite a feat, when "Google" is synonymous with "search") would not be a dent enough for anyone to care.

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    • Angry Artist

      I don't care if someone can't find the right to an Orphaned work.

      MAKE SOME NEW STUFF, STOP LEACHING OFF THE PAST!

      PAY SOMEONE TO MAKE SOMETHING NEW!

      I am a new Illustrator. I don't have ANY money to spend on copyright.
      I need free protection! This law would force me from posting my artwork online for public view!

      This is going to destroy the release of new information that can be viewed but not sold by the public!

      I'm so angry… I'm writing the government officials.

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    • Fed up with stupid people

      It seem most of miss the orphan part of the bill. Your copy rights are still protected if you are linked to it. If you are a blogger and are still posting you are protected. if you have are on a web site you still use you are protected. Orphan work is when there is no trace of the original poster. if you find that your work has been used with out your permission and they claim orphan act, as long as you can find that work on a site you use, you can still sue them.
      and as for the angry artist posting, everything has been done. there is nothing new in art or writing.

      • http://www.webmaster-source.com Matt

        I prefer the much more reasonable solution, which prevents orphan works from happening: reform copyright durations so they don’t last a lifetime plus 100 years.

    • http://www.powelleventphoto.com Jim Powell

      I agree with the last poster “fed up with stupid” (well except for that last line). This bill isn’t all doom and gloom. I’m all for copyright protection, and I don’t like this bill one bit, however based on everything I’ve read on this act (from reliable sources) the main issue isn’t so much about sticking it to the little guy. You’ll still have nearly all of the protection you originally had. The main change here is that it allows people to use your work if a reasonable effort has been made to find the creator. Unfortunately, “reasonable effort” is a very broad term, and many believe (myself included) it will become a loophole allowing companies to CLAIM they made a reasonable effort, when in fact they have not. Of course the bill supporters say the courts will make them show ample evidence of this effort, but big companies and big lawyers find ways to make up for (or completely make up) a lack of documentation.

      I understand why some people want this bill passed… and for the honest few, I do agree they should have some way to use some things if they truly HAVE put a reasonable effort into finding the owner, and more importantly, if the work can not be re-created. i.e. historically significant items or something like that. But I don’t believe it’s written like that, and I DO think the law will be taken advantage of, so I truly hope this bill fails.

      Regarding “Angry Artists” statement “This law would force me from posting my artwork online for public view!”
      That’s just silly. If you don’t bother to register your work now, you already don’t have much protection. It’s not expensive to register your work (you can register an entire collection as a single body work, i.e. call it 2007-2010, and register everything for one fee) If you’re not registering it anyhow (whether this passes or not) your level of protection won’t change much. It’ll be minimal either way.

      I’m an artist too, and I’m also low on funds, but if you can afford the computer you’re using to complain about this bill, you can afford the $35 to register your work.

    • http://www.powelleventphoto.com Jim Powell

      Oh and regarding “Copyright law should allow you to use it for noncommercial uses.” It already does allow that in some ways. There are “fair use” rights. Aside from that, if you use something you don’t have the rights to, if you are not making any money from it, the owner could ask you to stop using it, but that’s about it. As long as it doesn’t hurt the copyright owner, and as long as the infringer is not making any money from it’s use, there is very little that can be done. No lawyer will take that case as there is no money involved. Hell, I have a copyright infringement case where a guy is using my work that he was supposed to pay me $1,200 for. But even with that case, I can’t get anyone to represent me because it’s small potatoes for lawyers.

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    • Joe

      I just wanted to chime in and ask you to correct much of the information that you have in this article. The copyright duration is not life +100. In fact, for most works its life of the author +70 years (I agree, this is a long time, and yes, as far as I can tell, much of it is from the large entities like Disney wanting to hold onto their copyrights).

      The “diligent search” aspect is a HUGE factor you left out, as Dan B. Lee and others have pointed out. Its not as if someone can just use your work. They must first do a search for the owner (most blog posts and internet posts already have the author identified right on the work’s page) THEN, if the owner cannot be ascertained, then the author can use the work in a very limited fashion. SO LONG AS, they attribute the use of the copyrighted work in any derivative works.

      Additionally, IF the bill was the be enacted into law, it would not require any copyright registrations, that would be a violation of the United States participation in many international copyright and IP law treaties (e.g., WIPO, Berne Convention, TRIPS agreement, etc.) (IP = Intellectual Property, btw)

      This is actually a good thing for the little guys, it would allow you to use works you cannot find the author to (i.e., that WWII photo you found in grandpa’s attic), that are still in copyright, and not be liable for heavy copyright infringement liability. It does not completely alleviate users of “orphans” from monetary liability, but it keeps the penalties WAY down, so long as you can prove a “diligent search” and attribution.

      Finally, the US copyright cost to register a work (which remember, is NOT required, BUT does have advantages if you ever have to litigate (i.e., take them to court) against someone’s infringement of your work) is $40 per work. But again this is NOT required by law, as of 1976, as soon as you put pen to paper, or finger to keyboard, or any other “tangible” medium, your work is protected by copyright law (so long as its original, and doesn’t infringe on anyone else’s copyright)

      It would be beneficial to all of us if authors of these articles would to their own diligent searches before calling the masses to oppose legislation that would actually help most “little guys”

      Here is a good summary of the US copyright’s office report on Orphan works, (the full report is over 200 pages long):

      http://www.edwardsamuels.com/c.....rks.htm#**

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