Orphan copyrights


There’s been a blogosphere hullaballoo over an article by Mark Simon on Animation World Network about a piece of legislation that would deal with the copyright status of so-called “orphan works”. By his own admission Simon is full of piss and vinegar over this, but he’s also full of misinformation. He’s upset - and rallying the crowds like Chicken Little - because he imagines that this bill would do things that it wouldn’t do.

A Problem

“Orphan works” has nothing to do with young master Bruce Wayne; the character may be an orphan, but as property it’s a no-brainer to figure out who owns the copyright. The problem is that for many copyrighted works, it’s not that easy. Suppose I discover the Orange Orphan, a comic book character published (without creator credits) in 1947 by a publisher who has since gone out of business. I might want the Orange Orphan to make a guest appearance in my series, or I might want to make him the star of all-new stories. To do that, I need the permission of his copyright holder. I might make every reasonable effort to figure out who created the Orphan, who owned the publisher, what happened to their copyrights when they went out of business, and so on… but come up empty.

It’s something of a catch-22: the fact that I can’t find the owner probably means that there’s no one out there who would care if I used the Orphan, but that same fact also means that I can’t.

A Solution?

What this legislation (or something like it) would do is to make an exception in U.S. copyright law to allow someone in that situation to conclude that the work is an “orphan”, and treat it as if it were in the public domain. And if the son of the Orange Orphan’s creator saw the feature film I’d made about the character, and sued me for copyright infringement, I would have some limited defense based on the fact that made a good-faith effort to find him to ask permission first.

The crux of the matter is how much of a burden to place on the guy who wants to revive the Orange Orphan. Requiring him to get a notarized affidavit from every person on the planet saying that they don’t own the Orphan, would be too much. Letting him just do a Google search for “Orange Orphan” superhero copyright and give up when it doesn’t turn up the owner’s e-mail address, would be too little. If you listen to Simon and those who take his word for what this legislation would do, this bill would make it too easy. He’s misreading the bill.

(He’s also confused about the status of the bill. It died in committee from the 2006 session of Congress, and as far as I know hasn’t actually been reintroduced yet, though it reportedly will be soon.)

The bill says that “at a minimum” I would have to search the Library of Congress copyright registry. Before 1978, copyrights in the U.S. had to be registered, so if the Orphan’s creator or publisher wanted protection they would have registered it. In most such cases, this would produce a positive hit, and I’d have a name and address to start with. From there I’d probably have to do some old-fashioned detective work, and this would cost me time and probably some money. But the bill says that’s no excuse. The phrase they use to describe the search I have to conduct is “reasonably diligent”. I have to sincerely try to locate an owner, and I have to document that search in case I ever end up in court over it.

For works created since 1978, the LOC registry is less likely to produce an answer. But for newer works, the detective work gets easier. The “reasonably diligent” requirement doesn’t change. There’s also the real-world factor that the judge is going to get increasingly skeptical because the work I’m calling an “orphan” is new. It would stretch credibility to the breaking point to claim that a photo taken just a few years ago has no living “parent”.

The Underlying Problem

Some people question why this kind of legislation is needed in the first place. Mainly, it’s because copyright law has gone too far in freezing works out of the public domain. It used to be that orphan works fell into the public domain pretty quickly, such that an obscure superhero character from 1947 would obviously be free for anyone to use. But with near-perpetual copyright terms, that no longer happens. If we want the public domain to be forever limited to works from before 1923, the status quo is just fine. If we don’t, allowing works that no one still has a proprietary interest in to (effectively) join the public domain is the only way I see that changing.

The main concern of creators over this bill is that it would require them to register everything (which costs a small amount if time and money for each work, but adds up quickly) to get full copyright protection. The thing is… that’s already true. If you don’t register your copyright, and I infringe on it, you can’t sue me for all I’m worth; you can only sue me for “actual damages”, which means I have to pay you what the property is worth. Under this legislation, if you sued me, and I successfully defended myself with my “reasonably diligent” search, I’d still have to pay you what the property is worth. It’s not a “Get Out Of Litigation Free” card.

What this bill tries to do is to separate people into two groups: those who are trying to play by the rules and make an effort to get permission to use a copyrighted work, and those who are just trying to rip something off. Someone in the first group will meet the requirements of a diligent search, and will get some limited immunity from litigation because of it. Someone in the second group won’t, and they’re just as liable to get their asses sued off as they would be without this legislation.

I do think the legislation could make it clearer that a search of just the Library of Congress records is never enough by itself to qualify as “reasonably diligent”. That seems to be the bit that’s alarming even people who have read the bill itself, rather than Simon’s distorted interpretation of it. Since the bill is not anywhere close to being enacted, there’s plenty of time to amend it, and it would certainly be worth contacting your Congressperson to express your concern about it.

For a further reading and a few other perspectives on this:
Radio Free Meredith
The Beat
Copyright Office study about orphan works
Public Knowlege (including a copy of the bill)
Cory Doctorow (BoingBoing)

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