Just Say No

Pay attention.

The Orphan Works Blog
www.nikondigital.org/dps/dps-v-4-08.htm
www.tomrichmond.com/blog/?tag=orphan-works-act
www.sellyourtvconceptnow.com/orphan.html
Claudine Hellmuth Discusses It
Tammy Browning Smith shares her thoughts 
Photobusiness Forum Speaks On it

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**  Note:  I don't want to contribute to issue-obscuring emotionality on this hot button topic so, in an effort to minimize FUD in the following post -- FUD being Fear, Uncertainty, and Doubt, as Tom Richmond explained them; hysteria-inducing scare tactics -- I've reworded my post, below.  I still oppose the Orphan Works bill, not because I am an expert on the subject, or because I take issue with the CONCEPT of Orphaned Works (I don't,) but because people wiser, better credentialed, and closer to the issue than me cite so many loopholes for potential abuse given how this legislation currently reads.  Still, with more information on board, and not wanting to contribute to unnecessary emotionality over the issue, I've changed my wording a bit, to match my altered thinking. 

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The following is expanded from a flickr post by spadea:

New Orphan Works legislation is working its way through the legislature which proposes the following.  That if, after a brief search, "found" images cannot be matched with their copyright owners, they can be considered orphaned -- in short, free to use without permission, without compensation, without limitation.

There are certainly many legitimate reasons to "orphan" works, such as gaining the right to preserve them, if they're of historical interest and require restoration, in cases where the original copyright holder cannot be determined, or found.  Unfortunately, if the current Orphan Works bill passes as written, there are as many potential abuses, as there are uses.  With tens of millions of photos shared online via services like Flickr, Shutterfly and Snapfish, the passage of this legislation could create an opportunity for unauthorized use of publicly posted works... and in the process, would legalize that use, potentially creating a loophole for unscrupulous or deep pocketed parties -- and we all know they're out there -- to manipulate the legislation to their unfair advantage. 

Personal photos of your family and children, of your private moments, of your vacations, could -- if found to be "orphaned" -- be used in a magazine or newspaper (or in a pornographic publication, a smoking advertisement, a pharmaceutical ad, a military campaign, or a religious pamphlet) without your permission or payment to you.  And artworks by amateurs and professionals alike posted to online portfolios, photo sharing, and networking sites, could be equally at risk.

I'm not a lawyer or expert by any stretch but like many people, I've been jerked around by the slickest versions of both.  So this bill makes me nervous for "the little guys" out there, like me, who have neither the expertise, nor the deep pockets, to protect themselves against slippery, insidiously creeping abuses of this law.  My common man understanding is the following:  Orphan Works legislation suggests that, in order to protect your photos, you will have to register your photos in registries.  Why?  Because the folks who want to use your photos will have to search those registries to determine copyright ownership for the images they want to use, before they use them.  If your images aren't registered, your copyright ownership will likely be "missed" in these searches -- or so common sense suggests.  And that could become the defense for the unauthorized, uncompensated use of images which, under current law, are copyright protected and belong only to YOU... unless you specifically grant permission for use otherwise. 

Even if you register your work, under this new legislation, it's possible that people using your work could claim "We looked, but found nothing and assumed it was orphaned" as their defense for using it.  At this time, what I read suggests there's no clear and strident wording contained in the bill which  would explain exactly what a "good faith search" looks like, in measurable, quantitative terms, which will to a certainty be enforced.  It appears that, if another party uses your work and claims "We tried!" in defense of their actions, unless you pro-actively fight them, they automatically win the right to continue using your work.   Worse, even if you win, there are clauses contained in the Orphan Works legislation which appear to limit or remove your opportunity to recoup your legal fees.

Ironically, if these laws pass, it seems possible that you could actually end up illegally using your own artwork if someone else registers it, or a derivative work based on your work, before you do . 

It's certainly not the idea of "orphaned works" that is problematic.  Rather, in this case, it's the particularly vague and ambiguous wording, and the potential for abuse, as the legislation is currently written, that are the cause for concern.

Current Orphan Works legislation walks a potentially dangerous, ambiguously slippery path, likely to cost people -- especially creative people -- time, money, privacy, and even job security.   Photographers and artists are especially disturbed -- rightly so, I think, based on what I've read, and my understanding of this legislation -- by the potential for abuse in the Orphan Works package.

Please take a moment to learn more about this potentially devastating legislation.  Read for yourself all you can on the issue; certainly, my perspective isn't the only one.   Share what you know with others.  Voice your opinion to your local politicians and sign petitions lending support where you can.  Be heard. 

Thanks to spadea for graciously granting the reproduction and use of her image

Comments

[Tami Eveslage]

I can't see who this law could possibly benefit besides theives! Who are they protecting?

[Shel]

Tami, I think there is a well-intended aspect to this legislation. The problem is, it's buried under a morass of near-inevitable abuses and confusion and misinterpretation.

From what I read, this legislation is at least partly intended to, for example, allow the reproduction and restoration of vintage or antique works which are presumed to be copyright protected, which ironically prevents their preservation and restoration. The new legislation would apparently allow older works such as these to be labelled "orphaned works" and thus allow them to be preserved and/or used in the public domain, quite possibly for positive use.

However, it's so easy to see the numerous -- and giant -- loopholes this legislation introduces that I can't believe it's made it as far as it already has in its current state.

Anyway, to answer your question -- and to be fair -- there is at least some part of this bill that purports to do, and to BE, good. But I think it's just too clear how terribly wrong this will absolutely go for it to be taken seriously.

Thanks so much for your concern and your post!

[David]

This article also addresses the issues:

http://www.itwire.com/content/view/18308/53/

[Shel]

David, thanks for your link and comment. I'd never delete your input because people need to think for themselves and I admit that, like you in your article, in my blog I've presented only the side of this issue which I've adopted for myself. I agree that there is more hysteria over this issue than is probably necessary, and also, that the proposed legislation has legitimate and even worthy, long overdue utility in many ways, in many cases. But I also believe that if it's THIS clear that abuses are probable if not inevitable, and if those abuses can be described with this much precision even before they occur, and if there's any chance that big players will be able to manipulate outcomes in ways that indeed "screw" the little guy who can't or won't fight against such giants to maintain rights, the legislation is faulty as written, and requires revision prior to a final vote. I'm certainly no expert and I'm not an attorney so perhaps I misunderstand the legislation. However, if I do, I'm certainly not alone in my misguided interpretations. And for sure, it's hard to feel soothed and reassured about so many repeatedly-voiced and seemingly legitimate concerns, by comments from the author of the bill himself, who, ya know, kinda has an agenda shaping his remarks! There's just too much "if" and "we'll see" about this whole thing to make me, and so many others, feel comfortable with the bill AS IT CURRENTLY STANDS -- not "in theory." In theory, I think Orphan Works legislation is a grand idea. Just take the time to get it right before it gets fast-tracked into reality. I do appreciate your wanting people to be fully informed and to learn a different perspective; knowledge is for certain power, and that's an admirable goal. Thanks for taking the time to post.