What Makes an Orphan Work an Orphan?
May 14, 2008 – 4:51 pmWhen you have a hammer, everything looks like a nail. — unknown (at least to me!)
A real-life example, from Twitter of all places.
Sarah Perez (of ReadWriteWeb fame) sends a “tweet”, asking:
hmmm. used a pic in a post & have no idea where it came from-downloaded it ages ago,trying to relocate,see if it’s CC,can’t find-what to do?
I replied, claiming it was an orphan work (of course!). Sarah clarified:
I never used it before-just saved it from the net ’cause it looked handy. no idea when,where,etc
So, to recap:
- Sarah downloaded an image from the net. She typically uses freely available images (see here), but can’t be sure this time
- And she has no idea who the author is.
If you re-read the text of the bill floated by Senator Leahy, the image seems like it is on its way to being an orphan work. If Sarah makes a “reasonable and appropriate search” and jumps through some other minor statutory hoops, it sounds like she is safe from statutory damages.
That seems wrong, doesn’t it? At some point, Sarah found the image online, and we can reasonably assume that there is a good chance that at that time, she was able to identify the author of the work. But for her decision to not record the author’s name/contact info at that time, the work is now an orphan? That can’t be right. And indeed, if you do a blogsearch on “orphan works”, you’ll see that the photo-blog community is up in arms over the legislation, probably because of examples like the above.
If Leahy’s bill were to become law, hopefully the judicial gloss atop the legislation would require that the failure of the user to know the owner’s identity be measured against the “reasonable person” standard as is common in American jurisprudence. That is, would a “reasonable person” — a misnomer, typically defined as the most unreasonably careful and polite person on the planet — have acted in such a fashion? Factors will probably include the amount of time that has passed since the item (or its rights) were originally procured; whether there was some change of ownership, etc. And if the user were not “reasonable” (again, a loaded word), they do not gain the immunity from statutory damages that Leahy’s bill would provide.
If that does not happen, then the legislation as-written is rather awful. How could the author protect his or her right to statutory damages? A few ways, all of which are cumbersome or interfere with the work itself:
- Sign everything. This would probably require a watermark for digital photos
- Register everything with the U.S. Copyright Office
- Or implement some sort of really harsh downstream usage liability in the contract you use when selling rights to photos.
None of those are realistic beyond what makes sense already. In other words, artists should sign their work if they are able, but oftentimes, the publisher does not want the artists name on a photograph (for good reason), so demanding attribution on the artwork itself would hamper the ability to sell right to the work. Registering with the Copyright Office is a long process and a costly one in volume; the reason that one receives copyright over their works in a fixed, tangible medium automatically was part of the copyright reforms originally due to this cost. And assigning liability for downstream use of artwork in the rights assignment contract? Well, if you were the publisher, would you take on that liability? I’d not.
It’s easy to see why photogs are up in arms over this, and the reason is simple: Congress was intellectually lazy. Looking to the courts to define “orphan work” is unfortunate, but if the legislation passes, hopefully they will define it correctly.
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Tags: copyright, law, orphan works, publishing
2 Responses to “What Makes an Orphan Work an Orphan?”
saw your cool ac/dc lines on a vc, came over here to look…
don’t you think that in the future copyright will be an outmoded concept? it is not required for innovation, that happens anyway, but for protection, but in a near-infinite dispersal of all to all, what would be the advantage of copyright?
By gregory on Jun 10, 2008
I don’t — because:
a) The number of copyright holders, based on how the statutes are written (for good reason), is huge;
b) Because of that, the number of copyright holders who will attempt to enforce their rights will be significant; and
c) Congress will be unlikely to change (”reform”?) copyright law to allow for what probably should happen, mostly because Congress (i) is inherently slow and (ii) the stake-holders in part b, above, are more likely/able to lobby and otherwise organize than are, say, people like you and me.
By Dan121377 on Jun 10, 2008