PD law - 'Manufacturing consent and copyright law'

[argosail]

Boy, I didn't think this was all that new or controversial.

And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.

Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill

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First up, the orphaned work law, as I understand it, is not that controversial, nor do I think the loopholes are all that big.  The thing that's important is it's not just about the amount of effort that was put into finding the author, it's the very provable fact of whether the author could realistically be found by ANYONE.  If it is possible, the work is not orphaned. 

Let's say I post a photo on my website, someone else rips it and posts it on another site called "Pretty Photos" without attributing it to me.  Then, WalMart finds my picture and uses it in their ad.  Walmart doesn't have a valid claim that it doesn't know who the photo belongs to, just because they don't know my name.  WalMart knows it got the photo from "Pretty Photos" and it should have received permission from "Pretty Photos."  Pretty Photos is in violation of copyright in the first place for posting my photo without getting my permission, and it has no authority to grant permission to WalMart.  If it did, it could even be considered fraud on behalf of Pretty Photos.

Now, let's say my photo went viral on the Internet and nobody knows where it came from.  IT DOESN'T MATTER.  If I have proof that it is, in fact, my photo, then EVERY website that posts my photo without getting my permission is in violation of my copyright.  Just because nobody knows where it comes from doesn't mean they are off the hook....it just means they are lazy.  There is still a trail back to me.  It is the existence of the trail, not the effort that is made, which counts.  So long as one person got the image from someone else, there is a trail.  So, nobody can legitimately state that the work is orphaned, especially if I personally contact people that are trying to use my work.

If you are that concerned about people stealing your copyrighted materials, you should also take it upon yourself to register your work or create some kind of proof, as that kind of IP theft is possible regardless of any orphaned work law.  I'd say that if you want to post share something with the world, and you don't want it to get out of hand, make sure your name is on it and that there are plenty of witnesses who know where the work came from, so confusion can be avoided.  By now, any intelligent artist should be keenly aware of the fact that piracy is standard operating procedure for the Internet.

By the way, if WalMart was stupid enough to use a superhero that someone else created, without doing any due diligence, the orphaned work law would not hold up as a reasonable excuse, and you would likely win an amount equal to damages you suffered.  Although, personally, I think I would owe WalMart for getting my character more exposure than I could ever give him.

There are legitimate cases of orphaned works and I support giving people access to them.  It is ridiculous for useful works to rot in limbo because there is no known author, or because a company went out of business without transferring rights.

You make it sound like people who are using PD works, or orphaned works are stealing from someone.  It's not stealing if nobody owns the thing you are using.  In fact, using forgotten works should be considered an homage.  If I found a rusty old bike, laying in the garbage, is it really wrong to dig it out and take a ride?  Sure, someone made the bike, and someone used to own it.  But those people are done with it, and it's just going to rot in a landfill, so why shouldn't I recycle it?  Why shouldn't I take it to the park, for all the kids to ride?  Is it really necessary for me to go buy a shiny new one, if I can polish up the old one and take care of it?  Believe me, if someone was still using my characters after I was dead, I'd consider it an honor.

[Yoc]

Great post argosail and I like the bike analogy too.

[bchat]

Boy, I didn't think this was all that new or controversial.

And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.

Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill

(|:{>

First up, the orphaned work law, as I understand it, is not that controversial, nor do I think the loopholes are all that big.  The thing that's important is it's not just about the amount of effort that was put into finding the author, it's the very provable fact of whether the author could realistically be found by ANYONE.  If it is possible, the work is not orphaned. 

It's hard to track down who owns the rights to a picture when it's not registered.  Photographers usually don't register their work (due to the sheer volume of pictures they take), nor do they have to in order to have enjoy Copyright protection.  One of the main issues raised about "Orphaned Works" that I've read about is that some photo shops actually follow the Copyright laws, and someone looking to have a picture copied or reproduced runs into a virtual brick wall because the photo shop won't "break the law" since they don't enjoy the idea of being sued should the Copyright owner learn about it.

[John C]

I definitely don't understand, Argosail.  What you're describing is that, basically, you can use whatever you want until somebody sues you over it.  If someone is around to sue, then they can be found.

But that's the existing situation.  Copyright infringement isn't (yet) a criminal act.  The owner must learn about the infringement, locate you, and decide to sue you.  And the work needs to be registered--you can't get damages from a period during which the work wasn't registered unless it was published only very recently.

In other words, what you describe already is the law.

Do you have a reference (a bill number or the bill's author) so I can't find out what's what?  It doesn't sound like an EFF thing, for example.  As Jim suggests, it actually sounds more like something for big business to use things posted semi-anonymously to the Internet without repercussions.

[JVJ (RIP)]

You should read Brad Holland's take on the law, argosail.
http://www.sellyourtvconceptnow.com/orphan.html

My point about WalMart was not that they would actually do something like that, or that they would be able to get away with it. My statement was that the penalties would be insufficient to induce them to even bother to search more than cursorily. And the rewards to you, as the damaged party would not be subject to a lawsuit and jury but be set by law at your usual rates.

I'm curious when you say "If I have proof that it is, in fact, my photo..." just what anyone can offer (other than registration) as that proof? And is ANYONE going to make the effort to register every single thing that they do?

Everything you say about legitimate orphan works is perfectly true - and I agree 100% with your stance. I've been saying so for years. This law makes stealing from works that are NOT orphaned much more possible and much less financially risky.

There has been a great column in Photoshop User magazine on the benefits of registering your works with the copyright office, but it DOES cost money and it DOES take time. So, yeah, I certainly agree that registration is good and that orphan works should be available to modern creators, but you're missing my point. It's the definition of "orphan works" in this law that I find disturbing - and so do a LOT of other creative types.

as always, the devil's in the details.

(|:{>

[argosail]

I definitely don't understand, Argosail.  What you're describing is that, basically, you can use whatever you want until somebody sues you over it.  If someone is around to sue, then they can be found.

But that's the existing situation.  Copyright infringement isn't (yet) a criminal act.  The owner must learn about the infringement, locate you, and decide to sue you.  And the work needs to be registered--you can't get damages from a period during which the work wasn't registered unless it was published only very recently.

In other words, what you describe already is the law.

Right.  That's my point.  I think that the concerns people are expressing about an orphaned works law, are things you should already be concerned about with the current state of affairs.  

It's hard to track down who owns the rights to a picture when it's not registered.  Photographers usually don't register their work (due to the sheer volume of pictures they take), nor do they have to in order to have enjoy Copyright protection.  One of the main issues raised about "Orphaned Works" that I've read about is that some photo shops actually follow the Copyright laws, and someone looking to have a picture copied or reproduced runs into a virtual brick wall because the photo shop won't "break the law" since they don't enjoy the idea of being sued should the Copyright owner learn about it.

It may be hard to track down the author of an unregistered work, but it is not impossible and you are still legally obligated to do so.  Regardless of any "orphaned works" bill, it is illegal to reproduce copyrighted work, and yes, even now, some print shops will not print materials if they suspect that you don't own the rights to them (like a closeup of Sandra Bullock accepting her academy award).  That is based on general copyright law, and I don't think it has anything to do with orphaned works.  I do think there are more ways to prove you are the creator of a work than official registration, though I'm not sure how solid each of those means would be in court.  That's why I stated:

If you are that concerned about people stealing your copyrighted materials, you should also take it upon yourself to register your work or create some kind of proof, as that kind of IP theft is possible regardless of any orphaned work law.

JVJ,

Let me be honest here, I do not know the specifics of the current legislation being worked on.  What I do know, is that there does need to be SOME KIND of orphaned works bill that frees up legitimate orphaned works.  If the current proposal only requires a company to "make an effort" to find or contact the author, then that is obviously ridiculous and a breach of our rights.  But if they can be held accountable for not exhausting the possible options, then I think the law is quite reasonable and important.  I think that if you don't register your work and want to rely on the honor system, you shouldn't be surprised if someone tries to get away with something.  Anyway, even if the current congressional proposal in unsatisfactory, work should continue towards a reasonable solution, so that good work doesn't end up in the intellectual landfill.  I think there are plenty of reasonable conditions which could be used to determine a legitimate orphan from a work that's been kidnapped.

One thing I find funny is that everyone seems to think that corporate America is the driving force behind the desire to limit copyright protections.  Actually, quite the opposite is true.  The concept of copyright is to offer exclusivity, mainly for financial gain.  Therefore, strong and lasting copyright protections are much more favorable to corporate entities.  It allows them to buy up someone else's creativity and then block off access to that creative "property."  Copyright laws LIMIT an artist's freedom.  It is only favorable to an artist who can actually make some money off their own creations, and form their own corporation.  But there are blessed few artists in the entire world who have actually benefited from copyright laws.  Maybe if you are J.K. Rowling, or Todd McFarlane, then copyright laws are working for you and your new corporation.  But the rest of us really don't gain much from copyright.  We might make some modest amount of money for our art within our lifetime, and for that I support reasonable protections.  But most of us won't make much of anything for our work and drawing a familiar mouse with round ears and red pants, that people would want to buy from us, has been off limits for nearly a century.  Eternal exclusivity.  That is the corporate way.  The big wigs at Marvel had nothing to do with creating any artistic representation of Spider-Man, but they reap the profits of anything even remotely associated with that work.

[JVJ (RIP)]

I think it's all been scrapped, argo,
The 2008 bill failed. According to that stellar authority, Wikipedia,

"A petition authored by conceptual artist Steve Lehman helped influence Members of Congress (MOC) and in a startling turn around, legal scholar Larry Lessig signed the petition. His declaring the bill unfair wilted support of the legislation in legal circles. The House and the Senate never agreed on a final version of the bill, which thus never reached a vote in the House of Representatives and was killed. Most Americans were unaware of the proposal.

You can read the entire text of the proposed legislation here:
http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913

One of the provisions was that damages be limited to "reasonable compensation", which was defined as:

(3) REASONABLE COMPENSATION- The term ‘reasonable compensation’ means, with respect to a claim of infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.

Lots of little details like that were scary. If you can't even get your attorney fees back from the infringer, how likely are you to sue for infringement in the first place.

I'm glad it didn't pass, but hopefully any new version will be more "artist-friendly."

(|:{>

[narfstar]

I favor creator rights but also favor registration. How else can one reasonably locate a copyright holder?

[JVJ (RIP)]

Yeah, narf,
but there's no way anyone can make registration retroactive and we still have to deal with ALL the unregistered stuff that's out there.

Sadly, with the new laws that are in place, probably NOTHING will ever fall into the public domain in your or my life time. It's either PD now or not, and in the case of the orphaned works, we'll probably never know which.

It is a puzzlement.

(|:{>

[bchat]

One of the provisions was that damages be limited to "reasonable compensation", which was defined as:

(3) REASONABLE COMPENSATION- The term ‘reasonable compensation’ means, with respect to a claim of infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.

Lots of little details like that were scary. If you can't even get your attorney fees back from the infringer, how likely are you to sue for infringement in the first place.

As I understand it, what that ("Reasonable Compensation" & "General Rule") is saying is that the Owner could have sued for an amount equal to what they would have (or might have) received had the Infringer legally obtained the right to use the Copyrighted material.  Keep in mind that this would have (had the law passed) depended on the Infringer's ability to prove that they did everything they could to determine the identity of & attempted to contact the actual Copyright Owner.

[John C]

Right.  The law is saying that, if the true copyright owner catches you, you're only obligated to retroactively license the work from them, nothing more.  And they must sue to get that.

(This is why it's pro-big-business, incidentally:  By the definitions provided, it basically says that whoever's biggest wins.  If you infringe on DC, they can sue you for lost revenue of arbitrarily large size.  If they infringe on you, they pay "reasonable compensation."  And you can't collect legal fees if they show evidence that "they tried really hard.")

Having read the bills, I can't help but notice that it just codifies the existing (insufficient) system.  In fact, it never orphans the damned work!  If you use the work successfully without getting sued, there's no reason to expect that I can't be sued for doing exactly the same thing.

The right way (if nobody minds me crossing the streams) is simply to revoke a single line in the 1976 Act.  It says that copyright is never lost by failure to comply with the Copyright Office.  Remove it, and we have a process:  I want to print and continue a webcomic that hasn't been updated in years, let's say.  I notice there's no registration or copies placed on file at the Library of Congress, so I petition to have them demand it happen (which I believe can happen now).  If the owner doesn't comply with the request, the copyright is void.

That doesn't introduce any anti-Berne "formal requirement," doesn't create a burden on the artist or owner, and creates a clear path for declaring the work orphaned and in the public domain.  Too simple, though, when the entire system runs on lobbyists.

[JVJ (RIP)]

Yes, indeed, John,
VERY slanted towards the big guns and to the detriment of the "starving artists".

Sadly, your suggestion for solving the problem won't ever happen - no lawyers = no lawyer fees. And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.

(|:{>

[narfstar]

And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.
(|:{>

Which I have always considered a huge conflict of interest. As a teacher I can not be on the school board but lawyers can make laws to keep lawyers high paid

[John C]

Sadly, your suggestion for solving the problem won't ever happen - no lawyers = no lawyer fees. And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.

True, it errs on the Shakespearean ("kill all the lawyers," and so forth), but I did throw them the bone of the petition.  I'd certainly hire a lawyer to file it and make sure everything checks out.

[narfstar]

Were copyrights renewed on Pines Dinky Duck comics? Dinky was from CBS