Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Burn (DVD) to Hard Drive | Main | Royalties on Digital Tunes Stable Through 2012 - DRM in Doubt »

September 30, 2008

Orphan Works and Emphatic Words

Email This Entry

Posted by Alan Wexelblat

Once again I'm finding myself trying to make sense of something and hoping others can help me out.

I got a pointer from a freelancer friend to a page posted by the Illustrator's Partnership of America. This page contains a harsh critique of The Orphan Works Act of 2008.

That name sounded familiar but I hadn't heard it recently, so I went back into the archives and found a Nate Anderson piece on ars, from back in April, that talked about this proposed legislation. Anderson does a good job of summarizing the problem that the bill is trying to solve - if you can't determine the copyright status of a work, what can you do with it? And if you do reuse it, what protection do you have from being submarined?

The idea in this bill is to set up a system of rules that an artist would need to follow; if those rules are followed and a legitimate copyright holder later emerges, the re-using artist can't be sued into oblivion. In effect we get a 'safe harbor' for innocent infringement. The re-user doesn't get free access - he still has to pay license fees to the late-emerging copyright holder. But he would be immunized from large punitive damages.

This sounds like a really good idea to me, and organizations I generally agree with, like Public Knowledge, have been working on the issue. PK's page on this topic has not been updated since May as of this writing, but their blog entry for today, written by Rashmi Rangnath, addresses the bill as it was just passed, including the improvements in the definition of "diligent search."

So, what is causing the Illustrator's Partnership to use such harsh language? They claim that the bill "goes far beyond current concepts of fair use" and "has a disproportionate impact on visual artists." They use further alarmist language about "forc[ing] artists to risk their lives' work" and they go on and on at some length. Are we sure Jack "Boston Strangler" Valenti isn't writing this stuff from beyond the grave?

Certainly some freelancers are feeling that this reaction is disproportionate. For example, Adam Hutter of the Fractured Atlas Blog characterizes the response as "panicked hand-wringing". He also points out that much of the reaction is factually inaccurate and provides links to the bills for people to read themselves.

Rangnath's blog entry also points out how some of the bill's language has changed in direct response to concerns that were expressed when the bill was first introduced. It's just not clear to me why these changes haven't averted the apocalyptic verbiage from some quarters.

Comments (11) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Jayel Aheram on October 1, 2008 12:26 AM writes...

This bill has been discussed ad nauseam in the Flickr forums.

My main opposition to the bill is that it will unfairly burden independent artists with the requirement to conduct a "diligent search" before each and every appropriation of copyrighted work. Artists should need not to conduct a prohibitively expensive search for what amounts to a fair usage of a work. Will Fair Use be undermined with this bill? It certainly does not strengthen it.

Permalink to Comment

2. Mal on October 2, 2008 5:11 PM writes...

My main opposition to the bill is that it will unfairly burden independent artists with the requirement to conduct a "diligent search" before each and every appropriation of copyrighted work.

No, fair use trumps OW legislation. That is, you can choose not to do a search because you are using the work under fair use. How would this work?

1. You use the work.
2. The rights holder contacts you and claims infringement.
3. You assert fair use.

If, on the other hand, you are not comfortable with fair use (let's say you're a large commercial publisher and your book will be distributed in countries where the fair use doctrine doesn't exist). Then it goes like this:

1. You find the work.
2. You do a diligent search and are unable to find the rights holder.
3. You use the work.
4. The rights holder contacts you and claims infringement.
5. You present your diligent search records and offer reasonable compensation.

Permalink to Comment

3. Dan on October 2, 2008 10:55 PM writes...

So the buyer decides "reasonable" compensation?...

Interesting... and a bit backwards, doncha' think?

Taking another person's property is theft. Rewriting copyright law to allow the theif to decide reasonable compensation is madness.

Oh yeah, we should trust corporations to do the right thing. watched the evening news lately?


Permalink to Comment

4. nobody on October 3, 2008 7:31 AM writes...

Copying another person's property is NOT theft. And the only reason that rewriting copyright law to do whatever is madness is because copyright law itself is madness and ought to be abolished. In fact, if I had a time machine I'd go back and strangle it in the cradle. THEN go looking for little baby Hitler and Stalin...

Permalink to Comment

5. Dan on October 3, 2008 10:25 AM writes...

Nobody,

"Copying another person's property is NOT theft."...

I hope you're kidding. If not, you might want to actually know what you're talking about BEFORE making such an ignorant statement like that.

FACT:
Copyright is a form of protection provided by the LAWS of the United States
(title 17, U. S. Code) to the authors of “original works of authorship,” including
literary, dramatic, musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works.

Let me guess, you're the type of person referred to here:

“It is clear that this piece of legislation (Orphan Works Bill HR 5889) is part of an anti-copyright offensive waged by those who maintain that copyrights are obstacles to creativity and the free flow of ideas, as if copying, mixing, sampling and appropriation are the essence of the creative process.”
– Dr. Theodore Feder President, Artists Rights Society

Good luck with the time machine. I truly wish you godspeed.

Permalink to Comment

6. Jim Lai on October 3, 2008 3:09 PM writes...

The objection that visual artists, especially photographers, have to orphaned works legislation is that it makes it very difficult for them to set their own rates. It amounts, in essence, to a compulsory license.

The argument goes as follows. Many visual artists' works are incorporated into other works (such as magazines) without clear attribution, especially once those images make it to the Internet. So someone sees an image on a web page somewhere but has no idea who created it because there's no citation information because the web page just lifted the image from somewhere else without the usual attribution language.

Google is only so helpful in finding out who created an image, so the picture just gets used after a bit of poking around trying to locate the image by description doesn't work out.

The artist doesn't find out until their work starts appearing for sale on someone's website, and suddenly they are unable to enforce their copyrights. They may have done everything possible, including negotiating solid licenses with good attribution rights, registering their copyrights, and trying to keep track of their licensees, and the person using the image may be in clear violation of their rights, such as by wholesale use of the image for commercial purposes, and orphaned works legislation kills their right to statutory damages, etc. in favor of some ill-defined "reasonable compensation."

The objection is that the bill isn't sufficiently clear on what constitutes a diligent search or reasonable compensation and there is significant room for debate as to both. Even the amended version isn't clear. How do you search copyright records for an image? You can't paste a picture into their search tool. Do you have to mail copies to the Copyright Office and ask the if someone has registered a copyright? How do you find an unattributed author of a picture?

As both a copyright lawyer and a photographer, I can see both sides of the issue, but it's not as black and white as anyone who has posted on this issue seems to think.

Permalink to Comment

7. Dan on October 4, 2008 1:18 AM writes...

The fault lies in the premise that finding something on the internet and using it is acceptable.

Why do people think because they LIKE an image on the internet, and it's in front of them, that they can take it and use it?... Regardless of attribution?... the basic assumption that images, music, or any other content on the internet is floating there for the picking is where the problems begin. It's someone's property to dispose of as THEY see fit. This stuff doesn't just grow on trees - SOMEBODY SOMEWHERE created it and thus, by copyright law they own it! -- whether you can find them or not!. It's very simple: Create your own god damn image! Taking an image from the internet for your use makes you a THIEF! End of story.

If we treated unattended cars, houses, bikes, pets, kids, etc. with that mindset we'd be subject to arrest and prosecution! And we'd damn well deserve it!

ASSUME that the sweat, experience, time and money that one pours into creating a photo or graphic image is worthy of your respect... even in the privacy of your own browser window.


Permalink to Comment

8. drwex on October 6, 2008 8:29 AM writes...

as if copying, mixing, sampling and appropriation are the essence of the creative process.”

Actually, that's a pretty good concise description of the creative process. From Shakespeare, who copied and remixed popular folk tales and commedia stories to get parts of his plays, to Disney's sampling and mixing of fairy stories that go at least as far back as the Brothers Grimm, to Banksy's visual hip-hop-inspired reworkings.

Creators don't work in a vacuum. Creative acts take place in contexts and social mileu. Creative works are built out of pieces that are known to the creator, by one route or another.

Permalink to Comment

9. Dan on October 6, 2008 12:01 PM writes...

drwex,

That may be a fitting description of YOUR creative process or that of Shakespeare's, Disney's, the Brothers Grimm and Banksy to boot. However, for example, an artist who draws or paints a picture using their own hand, eye, and imagination and experience might arrive at their creation without the borrowing 'piece' you imply.

I understood this thread began as questioning the legitimate concerns of copyright holders. The borrowing of a portion of another's copyrighted work and subsequently making it "your own" is very different from using whole - and thus infringing - another's © property.


Permalink to Comment

10. drwex on October 7, 2008 10:57 AM writes...

Dan - thanks for the response, and sorry for the site problems with posting comments. Now on to your point:

I disagree that your hypothetical artist arrives at his creation without borrowing. That artist was trained in a tradition by people who have particular styles and methods they teach. It's likely part of his education was copying masterworks by past painters. He paints things based on his knowledge, his imagination (which is shaped by all the stories he's been told) and within the realm of the society he participates in.

For example, we do not paint pictures of children engaged in sexual acts because as a culture we've identified that as an exploitative and potentially quite upsetting image. For a work of art to be transgressive in the first place requires an understanding of its cultural milieu. The artwork known a Piss Christ is offensive to many people because of their cultural attitudes toward images of Jesus Christ.

It is true that, once in a while, artists will invent truly novel forms - the first painting to use realistic perspective, for example, or the first impressionist art, or first cubist art, might be identified in this unique way. But even in these cases it's difficult to pinpoint one specific thing - impressionism emerged from works of Monet and his contemporaries, not from a single bright spark of creation.

You're right that the question of orphan works originated the thread. But the related question is "what form(s) of (re)use of found imagery are permissible?" And that's what I think we're discussing.

Permalink to Comment

11. Nobody on October 10, 2008 8:07 AM writes...

Dan appears to be a nut.

"Nobody,

"Copying another person's property is NOT theft."...

I hope you're kidding. If not, you might want to actually know what you're talking about BEFORE making such an ignorant statement like that."

There is no need for you to be rude and insulting, particularly when it is you who is wrong and ignorant.

Theft requires that you take something, leaving your victim with one less of it. Copying does not have such an effect. Most three-year-olds are smart enough to realize this.

"FACT:
Copyright is a form of protection provided by the LAWS of the United States
(title 17, U. S. Code) to the authors of “original works of authorship,” including
literary, dramatic, musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works."

This much is true, but it's state protectionism of an industry and has nothing whatsoever to do with larceny.

“copying, mixing, sampling and appropriation are the essence of the creative process.”

Ah, much better.

"The fault lies in the premise that finding something on the internet and using it is acceptable.

Why do people think because they LIKE an image on the internet, and it's in front of them, that they can take it and use it?"

Because they can, and it is within their natural rights. Given that by "take" it you mean "copy" it, leaving the original undisturbed instead of deleting it.

"Regardless of attribution?"

Plagiarism is a different beast from copyright, and plagiarism is actually bad, unlike copyright infringement.

"the basic assumption that images, music, or any other content on the internet is floating there for the picking is where the problems begin. It's someone's property to dispose of as THEY see fit."

And my copy is MY property to dispose of as I see fit.

You seem to be thinking about this as if people are going and taking images off the internet in a manner that actually removed them and prevented anybody else from having access to them. As if they were a scarce, rivalrous good being taken. As if people were barging into a store and physically removing items from it without paying, thereby leaving fewer of them for anyone else.

This is not actually the case. It's more like window shopping and then building your own similar thing from your own raw materials. Which might compete with the store, but does not take something from the store.

"This stuff doesn't just grow on trees"

Actually, information goods might as well grow on trees, they are that cheap to reproduce. And this property is, by the way, a feature, not a bug.

"Create your own god damn image! Taking an image from the internet for your use makes you a THIEF! End of story."

What nuttery. That is exactly what people ALREADY DO: they create their own image, using their own HDD bytes and their own paid-for electricity, that happens to be a bit-for-bit copy of one from the internet, instead of removing the original from the internet. Generally because they don't know the passwords that they'd need to know to go around deleting files from other peoples' web sites.

You are being very silly, Dan. Exactly as silly as if you saw people looking into a shop window at a rocking chair, then buying lumber at Home Depot, going home, and constructing their own duplicates of that chair, and implored them to stop taking that shop's chairs and make their own "god damn" chairs as if they were not already doing exactly that.

"If we treated unattended cars, houses, bikes, pets, kids, etc. with that mindset we'd be subject to arrest and prosecution! And we'd damn well deserve it!"

You're joking, right? We'd be arrested for ogling someone's car and the building our own identical-looking car? Well, maybe if we went around cloning other peoples' kids the Bush administration would have something to say about it, but that's the Bush administration for ya!

"ASSUME that the sweat, experience, time and money that one pours into creating a photo or graphic image is worthy of your respect"

If you refer to making the very first, original copy, then this is an argument against plagiarism. If you refer to making any copy other than the first, then this is an argument that is null and void, since these days the sweat, experience, time, and money that one pours into creating the second and subsequent copies is typically the sweat involved in clicking a mouse button once, the experience of learning to use a standard graphical computer interface, the time it takes for the second hand on a clock to twitch once, and the money the hydro company charges you for a trickle of electricity used for a second or so -- probably about a millionth of a dollar.

"I understood this thread began as questioning the legitimate concerns of copyright holders."

Legitimate, my left butt cheek. The copyright holders in question are large corporations and the lobbying firms that are in their pockets, and their concerns are that the gravy train is about to derail and they'll have to start actually competing in the marketplace like every other type of business.

In fact, the gravy train derailed the day Napster debuted; they might as well be trying to legislate a change in the schedule of the tides.

And to answer a question of Wex's:

"what form(s) of (re)use of found imagery are permissible?"

Any, but it's exceedingly rude not to credit the author if you copy extensively and recognizably, and your copy is largely unoriginal rather than largely original, or, especially, if it is verbatim rather than paraphrased.

Permalink to Comment

POST A COMMENT




Remember Me?



EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
CBS to HBO: Wait for Us!
Sometime Next Year, HBO Will Become Netflix
OpenMedia vs the TPP
CopyrightX 2015 (online course) Now Open
College Students vs Rising Textbook Prices
"Amazon is crowdsourcing their slush pile"
Rule 84 and Patent Trolls
Sports Continue to Tiptoe Away from Cable Monopolies