Wednesday, May 21, 2008

Orphan Works

I wish I posted more often and regularly, but I've been awfully busy and blogging takes time, what with the thinking and writing and all. My site stats say a bunch of you check in regularly and I appreciate it.

"Orphan Works" is a topic that's really riled up my cartooning and illustrating acquaintances. Senate Bill S2913 is the Shawn Bentley Orphan Works Act of 2008 and HR5889 is its counterpart in the House. If the legislation passes, it will dramatically change copyright law in the U.S., and not for the benefit of creative types. I'm trying to educate myself and haven't actually yet read the text of the bill, so my comments are tentative and based on what others tell me.

As I understand it, Orphan Works are creative products--books, articles, essays, photos, artwork, cartoons--that somebody wants to reproduce but can't find the original copyright holder to pay or ask permission. As the law stands now, you'd be a criminal fool to say "what the heck" and use it anyway; someone owns the rights to the work even if you don't know who. If the Orphan Works bill passes, it would make it legal to do a diligent search for the work's original owners and, if you can't find them, not only go ahead and use it but register it for protection under your own copyright. What exactly constitutes a "diligent search" isn't defined.

Here's part of the problem: before 1978, if you created something and wanted to copyright it, you had to pay a small fee and register it with the U.S. Copyright Office. But in 1978 the law changed so that creators obtain copyright to their work the moment they create it without doing anything at all. You don't have to register or pay a fee; if you made it, you automatically own the legal rights to it and get to decide what happens to it. (If you want, you can still register with the U.S. Copyright Office, which does leave a useful paper trail. But you don't have to.) From the creator's point of view, that's great. It really cuts down on the hassle and expense. The drawback is that it doesn't create an official record for someone else to follow.

So let's say you wrote or drew something a few years ago. Maybe the publisher went out of business, maybe your signature or byline isn't legible, maybe your work is clearly marked “©1989 Bob Smith” but there are a million Bob Smiths in America so good luck finding the right one. Maybe you've got an old family photo posted on the Web. Or maybe you created one of those memes that just floats around the Internet. Next thing you know, someone else could take your work, register it as theirs, and crank out t-shirts, posters, books, movies and breakfast cereals based on your stuff. They could even prevent you from using it. And there's nothing you could do about it.

You can understand where the outrage comes from. Some artists call it legalized theft. Some imagine giant corporations laying claim to all the work they can find and bulldozing any creators who come out of the woodwork to object. Some fear the establishment of a registration clearinghouse--essentially a return to the pre-1978 situation--that could put them out of business (imagine being a magazine cartoonist creating 50 gags a week and having to register them all at $20 a pop).

I can actually see both sides of the issue. As a writer, I'm a very vigorous defender of copyright and I'd be outraged if someone took my words, art or characters and used them without my permission (if there's any exploiting to be done, it'll be by me!). I created 'em, I say what happens to 'em. I really despise the whole modern song-sharing software-pirating mash-up-media "information should be free" ethic. It's disrespectful. As I've written before: especially in a society that produces so few material goods anymore, the most valuable products we have are ideas; if you think my ideas are good enough to steal, you ought to think they're worth asking permission or paying for.

On the other hand... I'm working on a project now that incorporates bits of old artwork. One was copyrighted by General Motors in the 1940s, so I wrote GM (they've got a whole department for the purpose) and paid them a fair fee to license its use. Another was produced by a now-deceased artist in the 1950s, so I tracked down his estate and got their permission to use it. But there are other pieces done for publications long defunct by obscure artists long dead who as far as I can tell left no heirs. They're terrific work I'd really like to use but I can't and won't. That's a shame, and it also seems contrary to the original spirit of copyright, which was to give creators a reasonable time to profit from their work before freeing it for use by everyone (that's called "public domain," which is why anyone who wants to can write a Dracula or Sherlock Holmes story). Instead, the work is locked away and nobody benefits.

Still, it seems clear to me that the current Orphan Works bill is an abomination that ought to be stopped. It's an overkill solution to an insignificant problem. I'd urge you to write your legislators blah blah blah, and I have, but I don't really expect you to. I just thought you'd like to know what they're up to and why your favorite cartoonists may seem grouchy lately.

My copyright registration for Mom's Cancer.
So don't even think about trying any funny business.



Sherwood Harrington said...

In this era of wide and instant electronic publication, such an over-lenient definition of "orphan" is going to impact us ordinary e-citizens as well as professional creators.

Here's a personal case in point that I just became aware of today:

More than three years ago, I submitted a picture of my cat Alnitak to the humor site The guy who runs that site (who has to be one of the most twisted, brilliant, prolific, funny people on Earth) published it on his site. Cool; Al gets his fifteen minutes of fame.

This evening, though, while proctoring an exam and idly Googling, I ran across that picture in this suspicious-looking site. (It's in the "About Us" section, unless they've pulled it after my first request that they do so.)

Clearly, whoever is in charge of "The Mueller Organization"'s website found Al's picture on mycathatesyou, copied it, and used it. Under the new law, all he or she would have to do is note that mycathatesyou doesn't publish the names of its submittors, and so there was no way of knowing whose photo that was, so it was an orphan.

As things are now I can at least bluster at "The Mueller Organization" with some slight sense of legitimacy. If S2913 goes through, though...

Bottom line: this can be bad news for anyone who creates anything in the new age of instant publication.

Do you have any info on how our Senators, Feinstein and Boxer, stand on this bill? I'd fire off a letter right now, but would rather have a sense of their predispositions, if any, before I do so.

Terry said...

I created a comic strip I plan to send to the syndicates and was wondering if you thought I should register it before. You always hear about ideas for movies and TV shows being ripped off and I wouldn't want that t ohappen! I can't read all the boxes on your form but it doesn't look hard to fill out. Do you think its a good idea, and how much would it cost?

Brian Fies said...

Sherwood, terrific example. What are the odds of you finding that photo? I hope the Mueller Org does the right thing; maybe they'll even offer to pay you for its use! I don't know Boxer's and Feinstein's positions, but don't see how a politely worded note urging them to oppose the bill could go wrong.

Terry: funny, I just answered a question like this for someone else. As I told him, I am not a lawyer, nor have I been syndicated. However, based on my experience and what I've learned talking to pros, I think copyright registration is unnecessary for a comic strip submission. If a syndicate likes your idea enough to consider, it's a lot easier and less risky for them to contract with you. After all, you're the source of this great concept! On the other hand, if registering it gives you peace of mind, it's not difficult so go ahead. There's no harm; I just don't think there's much benefit, either.

The information required is basic: name, address, contact info. Box 5 asks for "Type of Authorship in This Work" and I checked "text" and "illustration." They'll also need a copy of the work itself. Go to and look through the forms and FAQs. I see there that the cost is $45 to register via mail and $35 electronically. And good luck!

Mike said...

There are two troublesome aspects to this, one practical, one philosophical:

1. Practically speaking, I have used out-of-copyright materials such as Andrew Lang's re-tellings of classic fairy tales with illustrations by H.J. Ford. Certainly, I marked my versions as copyrighted because they had been (gently, gently) edited for modern audiences. But it would never occur to me to consider Ford's illustrations as my own. This to me is nonsensical -- copyright the new presentation, yes, but not the original parts. I would suggest that the same thing might be applicable here -- If I can't find the owner of something, I can use it, but it doesn't become mine. And I damn well better have made a "diligent" search or I pay a royalty.

2. Some years ago, somebody died of e-coli from fresh apple cider, and the FDA now requires cider to be pasteurized -- which robs it of its flavor, since part of fresh cider is a slight tang of early fermentation. The reason this stupid rule went through is the Dole and Mott and the other giants of the industry can't bottle and ship "live" cider anyway. If an e-coli outbreak in packaged salad (which has happened) had prompted a rule to boil lettuce, those corporate lawyers would have shot it down in an instant. I can't help but think that Disney and friends are huddling behind the Sonny Bono Law watching this with a shrug -- they have their bunker and don't care about the individual artists who might be vulnerable to this.

Mike said...

... and, as it happens, on one of my next morning stops, I found this article by Gigi Sohn at HuffPost.

The whole thing is worth reading, if only as a starting point to find a different POV. But here's the critical part: "If a copyright holder reappears after a user has done a diligent search, then the copyright holder is entitled to reasonable compensation."

Which resolves one of my points. Here's another: "If the normally big media-friendly Copyright Office (or even worse, Congress) were to define precisely what is a diligent effort, it is likely to be one which would require the type of resources only the big companies have (they want to use orphan works, though few of their works are orphaned)."

As I say, it's not definitive, but it sure is thought-provoking.

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Brian Fies said...

Thanks for the pointer, Mike. An interesting perspective on the issue. As I say, I can see both sides, and that's a fair argument for the other.

Michael Conan, I don't know French and so can't tell if your post is Spam or a genuine request for advice. If it is, please feel free to write me at and I will do the best I can. And thank you for the compliments.