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.

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.

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.

Darren Di Lieto, the operator of the Little Chimp Society web site, has blogged about a troubling incident in which the series of interviews of illustrators, which he conducted for the LCS web site, were stolen wholesale and published in book-and-CD form, along with the sample illustrations he included with the interviews. Luc Latulippe, one of the illustrators whose work was ripped off, has blogged about it as well.

The publication is called Colorful Illustrations 93°C, and the publisher is (if you can believe the information in the book) called “Great Creativity organization”. The interviews and illustrations are copy-and-pasted directly from the web site, and to compound the theft, the image files are all included on a CD with the book, as if they were clip-art bundled with the price of the book.

This is an open-and-shut copyright infringement case - even without registration of the copyright it would be trivially easy to show where the material came from and that it was used without permission - and a good lawyer could probably include some additional complaints, perhaps involving “right of publicity” (the included illustrators didn’t give permission to be profiled in this book). In theory.

The main problem is that the publisher is in Hong Kong. As part of the People’s Republic of China - which as a communist state for a long time didn’t recognize the legal concept of private intellectual property at all - copyright enforcement there is… weak. If you think suing someone in Czechia or Colombia or even Chad would be challenging, China is an especially challenging venue. Even though China is a signatory to the Berne Convention covering international copyright, even Microsoft has a difficult time getting the Chinese government to enforce copyright law to protect bootleg copies of Windows that are being produced in that country. For a bunch of working-class illustrators going after a small publisher sneaky enough to use a fake ISBN… it doesn’t look good.

This sort of thing - at least something this blatant - doesn’t happen often in the tightly-knit, in-bred world of comics publishing. If there’s a silver lining to the Diamond monopoly on distribution to the comics-shop market in North America, it’s the fact that you could successfully cut off a plagiarist’s access to that market by contacting one company (and I have no doubt that the folks at Diamond would do that if presented with evidence of something like this). But as the global market for comics shifts to other channels (the bookstore distributors, print-on-demand and other direct sales, online publishing, etc.) the chance of this increases.

(Updated) The charges against comics retailer Gordon Lee have finally been dismissed. Neil Gaiman made an announcement of this at an appearance at the New York Comic Con on 18 April, and the Comic Book Legal Defense Fund announced the details today, the 23rd.

Lee is the owner of Legends, a comic book store in Rome, Georgia. Back in October 2004 his store was giving away comics to trick-or-treaters, and accidentally included in the pile of books was a copy of Alternative Comics #2, an “art comics” sampler that included an excerpt of a story by Nick Bertozzi in which Pablo Picasso appears without clothes on. Nothing erotic or salacious about it, just drawings of a man who’s been interrupted painting in the nude (which is how the event being depicted to place). The book was given to a 9-year-old boy… though the prosecutors claimed at various points that it was given to his 6-year-old brother, or to both of them. Their mother filed a complaint with the police.

Lee apologized for this mistaken, but was charged with two counts of violating the state’s Distribution of Material Depicting Nudity or Sexual Conduct law (a felony), and five counts of violating the Distribution of Material Harmful to Minors law (a misdemeanor). The first law requires that material containing nudity must be delivered in a properly labeled envelope. The second says that retailers can’t give materials containing nudity (or any kind) to a minor.

Two of the misdemeanor counts were for unnamed victims other than the kid(s) identified in the main complaint, and those were eventually dropped, along with the felony charges. A judge then dismissed those counts “with prejudice” (effectively finding him “not guilty” but without a trial), and consolidated the misdemeanor charges down to two.

The law he was being charged with prohibits “distributing a book, pamphlet, magazine, and printed matter containing pictures, drawings and visual representation and images of a person or portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors,” and knowingly furnishing a minor with materials “containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse and which taken as a whole is harmful to minors.” Which is a rather unusual description for drawings of a painter walking around with his penis hanging out.

Shortly before the case went to trial, the prosecution either demonstrated their incompetence or their shameless willingness to drag the trial out even longer with their mix-up of whether the comic was given to the 9-year-old, the 6-year-old, or both. With the details changed, the pre-trial work all had to be redone, costing the Lee (and the CBLDF) more money and time. Later, they refiled the charges to be reviewed by a grand jury, which they should have done in the first place, again sending the defense back to square one. According to Neil Gaiman (a perennial supporter of the CBLDF) the prosecution deliberately caused a mistrial because they didn’t like the jury that had been seated for the case.

The basic argument in Lee’s defense is that he didn’t do what the law describes. The comic was not sexually explicit etc. by any reasonable definition. The backup argument is that, if the law says that this comic is unlawful to give to minors, then the law is unconstitutional, because it’s overly broad and arbitrary, making it impossible for any ordinary person to figure out what’s lawful and what isn’t.

That argument didn’t get fully tested in this case. The charges were dismissed not by the judge ruling against the charges or even against the prosecution, but by the prosecution voluntarily dropping them. While they were waiting for a trial date - and signficantly, while a motion was pending accusing the prosecution of misconduct - the prosecution offered a deal: they’d drop the charges if Lee would write a letter of apology. Since he’d been willing to do that since the incident happened, he agreed to do it, and the whole case is now over.

This is good for Gordon Lee, no question. Looked at in isolation it’s a victory. But it’s an incomplete victory, for a few reasons. Broadening the scope a little, it leaves the prosecutors in Rome with little more than egg on their faces, when by the accounts of the CBLDF they’ve been guilty of misconduct, for which they should be held accountable. And looking at it from the perspective of its legal precedent, it has none. Because the case didn’t go all the way to a decision, it doesn’t go on record to clarify what the law is supposed to mean. And it doesn’t invalidate the law as unconstitutional. Of course both of those are best-case scenarios, and it’s possible that the court would have ruled against free speech on either question.

Understand: I’m not criticizing the CBLDF for taking this deal from the prosecutors (and then pushing them to live up to it after they offered it). It was the best outcome for Lee, which was the central issue in defending the case. And even though it doesn’t set a binding judicial precedent, it does set an informal precedent, showing other prosecutors around the country that harmless folks like Gordon Lee are not easy targets to help them curry favor with their bosses or the voters, that there are folks like the CBLDF and their supporters who will fight back.

The CBLDF spent about $100K defending Lee in this case, by the way. If you can afford to support them, please consider doing so.