General Category > Comic Related Discussion
PD law - 'Manufacturing consent and copyright law'
argosail:
Boy, I didn't think this was all that new or controversial.
--- Quote from: JVJ on April 09, 2010, 05:24:55 PM ---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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--- End quote ---
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:
--- Quote from: argosail on April 10, 2010, 01:23:54 AM ---Boy, I didn't think this was all that new or controversial.
--- Quote from: JVJ on April 09, 2010, 05:24:55 PM ---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
(|:{>
--- End quote ---
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.
--- End quote ---
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.
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