General Category > Comic Related Discussion
PD law - 'Manufacturing consent and copyright law'
argosail:
--- Quote from: John C on April 10, 2010, 09:33:55 AM ---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.
--- End quote ---
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.
--- Quote from: bchat on April 10, 2010, 05:43:15 AM ---
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.
--- End quote ---
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:
--- Quote from: argosail on April 10, 2010, 01:23:54 AM ---
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.
--- End quote ---
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:
--- Quote from: JVJ on April 11, 2010, 06:29:06 PM ---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.
--- End quote ---
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.
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