TokyoPop Manga Pilots contract examined

May 28th, 2008
Contracts

TokyoPop, one of the first publishers to make a big splash in publishing translated manga in North America, has a new program underway to recruit new creators and publish new material. It’s called their “Shining Stars Program”, and the Manga Pilot part of it seems to be inspired - or at least influenced - by DC Comics’ Zuda Comics venture.

Unlike Zuda, which is a recurring competition inspired - or at least influenced - by American Idol, this is more like an open focus group. TokyoPop is soliciting “pilots” for new manga series (like TV series pilots), it’s publishing online the ones it thinks have potential, and it’s asking for feedback from the public.

What I’m going to do here is similar to what I did at the dawn of Briefs on the Outside, when I translated the contracts Marvel was offering for Epic Comics into regular English, and explained what they meant. What’s different this time is that TokyoPop didn’t write this contract in Legalese; they translated it into conversational English. (I’d like to think they were inspired - or at least influenced - by the breezy style of my Epic translations, but probably not.) Regardless of the dialect, it’s legally binding, and requires some interpretation.

There are two versions of “the pact” (which is what TokyoPop is calling the contract, as part of the effort to make it less intimidating): a “solo” version for individuals, and a “duet” version for writer/artist teams. Obviously the “duet” version has room to provide information for more than one creator. The “solo” version is not - as you might assume - just for writer-artists who’ll do the whole thing themselves. On the contrary, it’s also for writers who are looking to be hooked up with artists, and artist looking to be hooked up with writers. But for the most part they are the same, with a few extra provisions to deal with the “solo” participants.

Introduction

That’s one of the points made on the first page: the contracts they’re offering are the same for everyone. There’s no special treatment for established professional creators… but no special treatment for naive first-time wannabes, either.

The TWO BASIC TERMS and A PACT FOR YOU AND US sections establish the terminology that’s going to be used in this contract. It’s their substitute for the “hereinafter referred to” language in the opening section of most contracts.

ABOUT YOU AND YOUR PROJECT

This section is pretty self-explanatory: Fill in the information it asks for.

If you’re under 18, you can still submit a pilot, but you’ll need your legal guardian to agree to the contract for you, since minors don’t have the legal authority to do that.

For the “duet” contract, you need to specify how you’re going to split up the money. Note that they’ll only pay if they accept your pilot; if they reject it, you don’t get anything.

WHAT YOU AGREE TO DO

This establishes what the content restrictions are: It has to be suitable for people who are not old enough to drive a car. If what you turn in doesn’t meet this standard… well, the first thing they’ll probably do is ask you to change it. But if you won’t, you’ll be in default of the contract, which has some serious repercussions on the section coming up about “what we (TokyoPop) agree to do”.

The “solo” version includes an extra section explaining how they’ll assign artists and writers to each other. The writer does have the right to approve the artist assignment. On the other hand, it also explains that the writer doesn’t have final say about the art itself, and explains what every comics writer-who-isn’t-the-artist needs to understand: it won’t look like the pictures in your head, and you have to accept that. Likewise, if you’re an artist and they assign a writer to you: the story is going to be different from what you were thinking.

Solo or duet, you’ll also be assigned an editor. The contract doesn’t stipulate that the editor has any specific authority, implying that you can ignore their suggestions. Which you can, but the contract doesn’t need to say this because TokyoPop has the final decision on whether to accept your pilot when it’s finished. If the editor says you should replace the monkey with a robot, you ignore the editor, and the rest of the folks at TokyoPop don’t like the money… the work might not get accepted, and you don’t get paid for it.

If you’re just-a-writer, you have to turn in a panel-by-panel script with dialog. If you’re just-an-artist, you will be expected to finish (i.e. inks and tones) the art, and do the lettering. Plus submit it in the right format, which is perfectly reasonable to expect. The deadline for completion is something the creators have a say in; if they’re more than a month late… your rights in that case will be covered later in the contract. Hold on tight.

COPYRIGHT

The next part of the contract is where you certify that you are creating this all yourself, without ripping off any other creator or copyright holder. This is a good reminder to creators of what copyright law requires, but it’s real purpose here is to cover TokyoPop’s ass: If you violate someone’s copyright, it’s your fault, not theirs. The pact gives the year 1909 as the cut-off for Public Domain, which is… oversimplifying it a bit, but it’s a workable standard. Likewise, they forbid anything involving real people, because that might possibly violate libel or slander laws, or someone’s “right of publicity”.

Like I said, this is an ass-covering move by TokyoPop, and their lawyer did a good job of spelling this out under DEFENDING YOUR WORK. It’s all on you. They claim that this is a pretty standard clause in contracts of this sort, because no publisher ever wants to be named in a copyright or defamation suit. And based on other contracts, I’ve seen, it’s true.

EXCLUSIVITY

TokyoPop doesn’t want anything that’s already been published or otherwise “exploited” elsewhere, in any form, in any medium. Not even for free. Not even a preview or an announcement. Unlike publishers who might be interested in picking up a successful or popular webcomic, they are looking for things that are completely new to the entire reading public. Likewise, they want exclusive rights to it for a period of time, which is reasonable. The term they’re looking for is 1 year after they accept it, which is also reasonable… as long as they’re actually doing something with it. That’s an issue that will come up in a bit.

WHAT WE AGREE TO DO

They’ll pay you for your pilot. Even if it never gets picked up for the whole production, if the proposal itself makes the cut to be presented online, they’ll pay you for that much. Which isn’t a half-bad arrangement, really. The vast majority of 20-something-page proposals are done “on spec”, which means the creators never get a dime for them until/unless a publisher picks up the whole thing. TokyoPop will pay for the pilot within 30 days, which is typical terms for a business working with a contractor. If you want your checks mailed directly to your silver-haired mother back in Smallville, they need that in writing.

But there is a catch: they have to approve what they receive. The good news is that they list some of the reasons they might not approve it. Many of these are common sense (at least if you’ve been reading the contract so far). In addition to the works with legal problems, they might turn it down because the story or the art is - in their judgement - not up to their standards, or it doesn’t meet their content restrictions. They say that they’ll try to work with you to fix the material if that’s possible, and there’s no reason to think they won’t. But they don’t have to. If they don’t approve it (or take more than 30 days to approve it), you’re off the hook with the exclusivity.

If they approved the first pilot, and they think the first pilot did OK (but not spectacular) so they want a second one, they can request that, for the same fee as the first. Presumably you can decline, in which case the 1-year exclusivity on the first one continues. If you do a second one, the 1-year-exclusivity starts over again as soon as they accept that one, which (for all practical purposes) includes the original pilot (since the characters, etc. are presumably the same).

RIGHTS YOU GIVE TO US

You gave them exclusive rights to sit on the material earlier in the contract, but here you give them exclusive rights to publish it. That’s to be expected.

They don’t have to pay you for the publication. That’s a little surprising. In theory they could publish your pilot in all sorts of media in huge volume, and not pay you anything beyond the fixed fee specified at the beginning of the contract. Even if they sell the material at a profit. They can even give other we sites the rights to your pilot. Also without paying you anything more for that.

They don’t have to keep your work the way you did it. They can do whatever it takes to shove your work into a cell phone screen or put it up on the silver screen

There’s been a bit of noise over the bit in this contract that requires the creator to give up the “moral rights” to their work. TokyoPop engages in a bit of anti-intellectual francophobia here, describing this as a “fancy French idea”, as if they were taking their cues from the G. W. Bush administration. To be fair, what they’re trying to do here is to take this contract out of the realm of European law - where moral rights typically apply to copyright - and limit it to traditional American law, which doesn’t specifically recognize moral rights in the same sense. It’s a bit more complex a matter than TokyoPop presents it as, however.

One of the key elements of moral rights (but not the only one) is the right to be credited for your work. TokyoPop requires that you give up this right, so that they have the freedom to publish your work in formats where giving credit would be difficult. This contract says that you are giving up this right, but the language of the contract would give you a pretty good case if they abused this freedom by not crediting you where it is easy to do so, such as on a printed copy or on a standard web site.

NEGOTIATION RIGHTS

During the year that this project is “married” to TokyoPop, they don’t want you pimping it - or even just flirting - with other parties. You can’t negotiate with anybody else to do something with the material until the pilot itself is free and clear. Obviously they want first dibs on producing an actual manga book or series from it, or to adapt it any other medium. In some cases they might want to co-own the material, which would allow them to continue it without you, but might given them an added incentive to work it into something profitable; caveat creator. They don’t claim the right to do any of that; they just want to be the only people you talk to about it during that year. They figure that they’re promoting the work during that time (or at least are planning to do so), so they want to be the first ones to take advantage of that. Even after the year of exclusivity, they demand an opportunity to match any other offers you get.

Another right they keep even after the exclusivity ends is the right to continue publishing the work. You can still take it to other publishers, but if they still have copies in stock, they can still sell them, and if they want to go back to print they can do that too.

OTHER STUFF

One nice thing is that there’s no non-disclosure requirement attached to this contract. The contract itself is being published, of course, so the terms can’t be a secret. But you don’t need to keep secret that you’ve signed it, which is not always the case.

In the event of disputes over this contract, they want to start with mediation, and then arbitration in LA, California. Mediation and arbitration are generally less painful solutions than actually going to court, so this is a perfectly understandable wish. And you can’t blame them for picking the jurisdiction they live in for it, since they don’t want to have to travel.

Summary

This contract has been lambasted on some blogs as the most heinous assault on creator rights since Jerry and Joe signed away ownership of Superman in 1938. That’s a bit of an exaggeration, to say the least. It does give TokyoPop some unusual rights, but not as bad as some folks are making them out to be. The exclusivity is unsurprising and fairly reasonable, and the abdication of the creator’s moral rights are merely Something To Think About Carefully rather than a reason to get up in arms and boycott a publisher. Like any other publishing deal, it all comes down to what you’re willing to give up in exchange for what the publisher will do for you. No one’s forcing anyone to sign anything they aren’t comfortable with.

Indiana comics shops have to register as “adult bookstores”

May 9th, 2008
Free Press

There’s a law going into effect July 2008 in Indiana which will require any store which sells sexually explicit books to register with the state, with a charge of $250. The state will then notify the store’s local government (county, city, zoning boards) of the store’s registration. Selling “sexually explicit” material without registration will be a Class B misdemeanor, punishable by up to 180 days in jail, and up to a $1000 fine.

The sponsor of the bill says, “I wrote this bill in response to a situation in my district where a store gave residents the impression it would be selling books, movies and snacks. Instead, the store opened selling sexually graphic products. If the retailer had to register with the Secretary of State beforehand, the residents could have been notified of the store’s intent and petitioned to keep the retailer out of the community.”

In other words, if a new comics shop is going to stock Eros books such as Birdland and Ironwood behind the counter, or even if they’re planning to fill special orders from their customers for books from the Previews Adults Supplement, they’ll have to register ahead of time with the state, and face opposition from neighbors who think this means they’re getting a porn shop (which are always assumed to bring illicit sexual activity and crime in their wake).

The law is being challenged in court by the ACLU of Indiana, American Booksellers Foundation for Free Expression, the Media Coalition, and of course a bunch of Indiana booksellers. They argue that this registration requirement amounts of a restriction of free speech, and a violation of the First Amendment.

Dark Horse challenges Oregon censorship law

May 1st, 2008
Free Press

Dark Horse Comics and the Comic Book Legal Defense Fund are two of the plaintiffs suing the state and counties of Oregon to block a new law banning the sale or other distribution of certain material to children, and another applying even harsher penalties for “sexually arousing” material provided to teenagers. The law went into effect in January 2008.

The first law (ORS 167.054) prohibits (among other things) selling books containing any “sexually explicit” material to a child under the age of 13. The law defines this to include masturbation, sexual intercourse, and various combinations of objects and body parts that are commonly involved in having sex. This sounds reasonable, and is obviously well-intended. However, even though the term they use is “explicit”, the language of the law isn’t that precise. It refers to any “material containing visual images of: (a) Human masturbation or sexual intercourse,” which could easily include a picture of two people intertwined… but with no naughty bits visible.

The second law (ORS 167.057) applies to materials provided to anyone under the age of 17. It’s a little better in one sense, because it attempts to take into consideration what the purpose of providing the book was: it has to be with the intent of “(A) Arousing or satisfying the sexual desires of the person or the minor; or (B) Inducing the minor to engage in sexual conduct.” In case (B) the person is trying to commit statutory rape (Oregon’s age of consent is 18). But case (A) would mean that showing a dirty story to a 17-year-old to get him sexually aroused is illegal. So much for letting 17-year-olds into movies like American Pie or Porky’s.

Dark Horse is involved in this suit because they are based in Milwaukie, Oregon (a suburb of Portland) where they also operate a store. The CBLDF is involved on behalf of comics shops in Oregon, and cites Watchmen (stocked in all the good ones) as a book which would be restricted under this legislation. The other plaintiffs include several Oregon booksellers (including Powell’s, one of the largest used book stores in the country), the Cascade AIDS Project, Planned Parenthood, the Association of American Publishers, and the ACLU.

The law provides a few exemptions to protect schools, public libraries, medical professionals, and other such institutions, but it doesn’t protect booksellers in any way. This means that a book that’s perfectly legal for a 12-year-old to read in a lesson about human sexuality in school, would be Class A misdemeanor to let him browse in a bookstore. This could result in up to one year in jail and/or a fine of up to $6,250. Similarly, a book that is perfectly legal for a 17-year-old to pick up on his own read (and become aroused by), could be a Class C felony for someone to give to him. That could result in up to five years in prison and/or a fine of up to $125,000.

Furthermore, the law for under-13s doesn’t provide any exceptions for works in which the “sexually explicit” material is just a small portion of a larger work. The book in the case brought against Gordon Lee didn’t meet this “sexually explicit” standard (Picasso was nude but the images were not in any way sexual), but that’s an example of the kind of thing that could happen: a few images hidden in a larger book could make it illegal to furnish to a 12-year-old. Similarly, there’s no exemption for the overall “merit” of the work (like there is for determining “obscenity”); a book with a brief scene of sexuality used in a cautionary context for children would be judged the same a titty mag. Powell’s has millions of books on the shelves, and smaller stores generally have much smaller staffs, which could never hope to screen all of their books for this kind of material. It places an “undue burden” on them.

There’s also the problem that the one law sets the age of 13 as the limit. Most 13-year-olds (or 15-year-olds, and even some older teens) don’t carry any proof of their age. The law allows a person to use the defense that he “had reasonable cause to believe that the person” was more than 12 years old, but that’s up to the jury to determine or not. The only way a bookseller could be safe would be to require proof of age, which would effectively raise the age limit to 16. This is an example of what legal experts call a “chilling effect”, in which a vague law that could be applied carelessly effectively forces people to shy away from doing things that would (probably) be legal.

Both of these laws have noble goals: protecting minors from things they aren’t emotionally ready for. But they go farther than is really needed. Furnishing a 12-year-old with a book about human sexuality isn’t necessarily an attempt to abuse him or her, and furnishing a 17-year-old a book in which human sexuality is depicted as arousing, for the purpose of letting her or him enjoy it, isn’t necessarily an attempt at sexual molestation. It could simply be about providing harmless entertainment or education, and that shouldn’t be outlawed.

More info can be found in The Portland Tribune and the ACLU of Oregon websites.

Local comics store owner shot in robbery

April 27th, 2008

This has nothing to do with the law per se. It happens to be a criminal legal case, but that’s not the point. I’m reporting this more as a personal interest item.

Apparitions, one of the handful of comics shops here in Grand Rapids, Michigan, was robbed at gun-point this weekend. Which would be bad enough, except that David Pirkola, the co-owner of the store, was also shot in the process. He’s in stable but critical condition, according to the local news media. The perp came into the store with a gun, demanded money, and for some reason shot David. Then he ran. I don’t know if he got any money, or why he fired. Doesn’t really matter.

What does matter is that David doesn’t have insurance. Go figure: he owns a comic book shop, and that “job” doesn’t usually come with benefits. Even though David pretty much runs the store normally, it’s going to stay open, with the store’s other owners (apparently there are three partners who own the shop, along with a sister store in Lansing) and an employee running the place in Dave’s absence.

Apparitions has never been my regular comics shop (inconvenient part of town for me), and I haven’t actually been there in a few years. But it’s a pretty good shop: carrying a pretty broad a selection of superhero and alternative series, plenty of back issues, lots of graphic novels (even before they were hot), RPG resources, “real” books, etc. Dave’s a nice guy, and runs it out of love, because like most comics shops, it isn’t making anyone rich. Which obviously puts him in a bad financial situation, regardless of the injury itself.

The folks at iFanboy are collecting donations to help pay for his medical expenses, which will undoubtedly be huge. I’m squeaking by on income from a part-time job and a really quiet consulting business, and I chipped in fifty bucks… do you have a better excuse than that?

I’ll interject a bit of “law” commentary at this point, to suggest that the United States should have some program in place in our health care system so that an incident of this kind doesn’t bankrupt an individual. Something to ask your legislators in Washington about, and to evaluate the presidential candidates based on whatever “health care plan” they might have.

More info about the incident can be found here, here, and here.

Orphan copyrights 2008

April 26th, 2008
Copyrights

I wrote recently about the tempest over a bill that had been introduced in Congress two years ago, which would establish some boundaries and procedures for how to deal with “orphan works” (works that are copyrighted, but the owner can’t be located… read the previous article for more background on the subject). The furor was a bit overblown, in part because - contrary to what the Chicken Littles were saying - the bill was not before Congress; it had died in committee and had not been reintroduced.

Well, it’s back.

The Orphan Works Act of 2008 has been introduced in both the House and Senate. (In the Senate it’s called the Shawn Bentley Orphan Works Act of 2008, named by sponsor Orrin Hatch to honor a 41-year-old former staffer who died of cancer.) The two bills are very similar, with the House version (H.R. 5889) including some provisions which appear to have been added in response to fears by copyright holders, but aren’t in the Senate version (S. 2913). Each house of Congress will make additional changes to their bill over the course of its life, and if both of them pass, a committee of the two houses will wrangle a compromise version and send it to the president to sign into law.

The bill’s sponsors are Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and Representatives Howard Berman (D-CA), Lamar Smith (R-TX), John Conyers (D-MI), and Howard Coble (R-NC). As you can see, it has some bi-partisan backing, and these particular Congressfolks include some heavy hitters in the judiciary committees, so the bill has a reasonably good chance of passing. If I had to make a prediction, I’d expect the final version to look more like the House version, since it’s more friendly to copyright owners, and those are the people (or corporations, rather) that have the better lobbyists in Washington. But I’ll try to describe them both.

Limitations on Remedies

The bill would add a section to the copyright law currently on the books, putting specific limits on what “remedies” a copyright holder could get if he discovered that someone was using one of his works without permission. In general he would have the same rights as before, unless the infringer (I’m going to assume it’s a woman, so I can use gender-specific pronouns as a shortcut here) can demonstrate that she was unable to locate the owner and therefore concluded that the work was an “orphan”: a copyright-protected work with no surviving owner.

This bill doesn’t actually create a class of works that are officially “orphans”. Unlike when a work falls into the Public Domain (which is permanent), just because someone successfully uses the Orphan Work defense today doesn’t mean someone else can use it for that work tomorrow. This bill is all about the process of someone trying in good faith to identify the owner, and using that process as a partial defense if the owner turns up later. When the owner is identified, his copyrights remain intact.

The Orphan Defense

To qualify for protection under this bill, the copyright infringer would first have to prove “by a preponderance of the evidence” that she “performed and documented a qualifying search, in good faith, for the owner” and couldn’t locate him. “Preponderance of evidence” is the usual standard in civil cases, and simply means that she has to convince the court that her account of what she did to locate the owner is more likely to be true than false; she doesn’t have to prove it “beyond a reasonable doubt”. But the burden of proof is still on her. One of the key things here is that she has to document her search. If she doesn’t, she won’t have the preponderance of evidence on her side, and she’ll lose.

But that’s not all she’d have to do. Under the House bill, she’d have to file a “notice of use” with the Copyright Office. Under either bill, if she was able to identify the owner (but couldn’t locate him to get permission) she’d have to give him attribution for the work. (How this would be done depends on what kind of work it is. If she was using an orphaned comic book character, it would presumably mean stating “Heroman was created by John Q. Doe” in the credits.) Whether she identified the creator or not, she’d have to include a symbol (apparently to be determined later) that indicates that she’s using a presumedly-orphan work.

In order to use the Orphan Defense when the case went to trial, she’d have to declare that up front, and provide all the documentation of her search before the case went to trial. That’s to prevent her from first trying to claim that she didn’t infringe on the owner’s copyright, then trying to claim that yes, she did rip off his work, but she did a thorough search for him before she did it, as a “plan B” to limit her legal liability. In other words, she can’t use a variation on the Bart Simpson Defense of “I didn’t do it, and nobody saw me”; she can’t have it both ways.

Furthermore, when the owner first contacts her and points out that she’s infringing on his work, she has to negotiate “in good faith” for how much to pay him for it, and she has to make “reasonable compensation in a reasonably timely manner”. If she fails to do either of these, she gets no protection.

Qualifying Search

That’s all about what she has to do in court. What does she have to do before she uses someone else’s work? The bill says she has to make a “qualifying search” which includes “a diligent effort to locate the owner of the infringed copyright.” More specifically, the court will consider whether her search efforts were “reasonable and appropriate” and whether she acted based on what she found. It will consider whether she followed the “best practice” guidelines for how to conduct a search, which will be published by the Register of Copyrights. And it will consider when she did the search (i.e. was it shortly before she used the work?)

The bill specifically states that she can’t use the fact that there’s no identifying information on the work she copied as proof that the owner couldn’t be located. She has to try.

The House bill includes a provision that’s missing from the Senate version, for a “Notice of use archive”, where someone who’s going to use an orphan work would be required to describe what she’s doing: describe the work she’s copying, what she knows about the owner, what she did to find him, how she’s going to use it, etc. It isn’t clear who would have access to this archive, with the bill saying only that it would be determined by the Copyright Office.

Failure to meet all of these requirements would mean that she’d be subject to the same legal repercussions as she is today.

Pictorial Works

The bill calls for the creation of a pictorial database that would make it easier to search for the owners of works that aren’t easily Googled. Actually it’s more correct to say that it tells the Copyright Office to write up the specs for such a database, which would be used to certify databases (plural) as meeting the standards for a qualifying search. So it sounds like they’re talking about privately-run databases, rather than one operated by the Library of Congress. That’s a little troubling, but not surprising given the mindset among so many in Washington that the government should outsource whatever it can to the private sector.

Both versions of the bill would have these new rules go into effect in 2009, but put a later date on applying them to pictorial works. The Senate bill would delay them until either: two or more of these databases are online and available, or 2011. The House bill would extend that to 2013.

Punishment and Limitations on Punishment

All of this provides the infringer with a defense against a copyright infringement suit, but it’s only a partial defense. Under this bill, the infringer would still have to make “reasonable compensation” for her use of the work, unless she could demonstrate that she’s a not-for-profit entity used the work purely for traditional not-for-profit purposes (e.g. education), didn’t profit from the work, and stopped using the work as soon as the owner told her to “cease and desist”.

The court can issue an injunction prohibiting her from continuing to use the work, unless she’s done something more than simply reproducing it. For example, if she’s taken the character of Heroman and written new adventures for him, she’d be permitted to continue publishing those adventures, with proper compensation and credit to the character’s creator. So in effect, once the horse is out of the barn, he can’t be corralled back into it. But as I said before, this right to continue using the character isn’t a universal one. Only the person who did the original search and came up empty can do it; I can’t come along and do my own Heroman adaptations as well… especially since at this point the owner of the character has been clearly identified.

Blogosphere Criticism

I’ve seen all sorts of wild criticisms of this bill in blog and message board “warnings” about it. Few of them seem to be familiar with the bill itself, or even copyright law in general, which is unfortunate.

Many of them accuse it of creating a situation which already exists under current copyright law. For example, opponents complain that under this bill, copyright holders would have to be constantly on the lookout for infringement to have any hope of catching someone trying to sneak by under these rules. Well, that’s how copyright works today. They also complain that the court - not the creator - would determine after the fact what a “reasonable” fee is for the use of the material. That’s how it works today as well.

Others insist that it would be easy for the infringer to bluff her way through an Orphan Defense. While the bill doesn’t spell out in detail what the requirements for a qualifying search are (a valid criticism of the bill), it’s clear enough from the language of the bill that some real care and effort will be necessary. After all, the “prosecutor” in these cases is going to be the person whose work has been infringed, not a disinterested district attorney, so it’s safe to say that he’ll present a spirited challenge to her claim that she performed a “diligent” search for the work’s creator, and not let her get off with a shrug and “I tried”.

Bottom Line

There are some additional bits and bobs in this bill, which aren’t especially relevant to the subject of this site (comics and the law), but that’s the gist of it, as briefly as I could make it. I think it’s a Good Thing.

These versions of the bill eliminate some of the things that creators didn’t like about the 2006 bill, and provide a reasonable framework for dealing with the problem of missing owners. Back when renewals were still required, only about 15% of copyrights were renewed, which means that 85% of them were effectively abandoned after only 28 years. But under current copyright law there’s no need to renew them, so 100% of works created 28 years ago are under ironclad copyright, and will remain that way until 2075… even if there’s no one alive who claims them. That’s an utterly pointless restriction, and it’s bad for the development of our shared culture. With the Public Domain frozen at 1923, an exception for abandoned and orphan works is the only way those works will be used in the foreseeable future.

I think that a sober reading of this bill reveals a system that would work. It would give some protection to people who seriously try to locate the owners of works they wish to use, and it would still give recourse to those owners when/if they discover that they’ve been prematurely declared “dead”. I’d rather see the pictorial database kept under direct government administration, or at least have some assurances that it will be kept free of charge or have some solid caps other than “what the market will bear” on the fees, both to search and to register. But on the whole, it seems fair all around, with no gaping holes that would gut the whole copyright system, as some opponents of the legislation seem to believe.

Further Reading

Of course the devil is in the details, and if this is something that concerns you, I recommend reading through the bills to look for dangerous loopholes or unfair give-aways to one group or another (which commonly get added in committee).

Here are two rather different perspectives on the new legislation: Public Knowledge, and Illustrators’ Partnership, and a more balanced one from the American Society of Media Photographers.