A Little More Orphan Works

July 21st, 2015 | Posted in General

Orphan Works cartoon by Nick Anderson

I’ve gotten a number of emails and comments saying that this Orphan Works thing is being taken way out of context, that it is fear mongering, that the fears about it are based on inaccuracies, and we should all just shut up. Granted, I did cut and paste the Illustrators Partnership response and call to arms without reading the current proposal, which is different than some of the past bills that have actually made it to Congress. I have since read the proposal.

My take: both sides are spinning it a little too far, but the pro Orphan Works folks are doing it with their heads in the sand.

Some of the more vocal opponents takes are rather alarmist, and are certainly taking the proposal in its current form a bit too dramatically. Some of the claims as to what this will do are pretty over the top. For example, many are saying it will take away our copyrights to our work. No, it will not. We still have copyrights on anything we create. On the other hand, responses like this one to do not look past the language of the proposed law to what its real life implications are. For example, yes we still have copyrights to our work, but it only applies if a party wanting to use that work can find us. If they can’t, then our copyright is useless. That’s the crux.

The most recent Orphan Works bill is better than previous ones, as it at least has some specifics as to what they consider a “diligent search” for a piece of work. Still, it empowers anyone who does such a search and comes up empty to use the copyrighted work without real fear of repercussion. On the internet today, almost any image where the copyright or signature has been removed and it has been used by some low life as a meme is basically orphaned. No one can explain to me how the creator of such a piece of work can prevent that from happening. I’ve had it happen to me many, many times. Technically every one of those images would be considered an “orphaned work”, unless I took the extra step to pay to register it with one of the register services that are bound to crop up and which will be (funny) all private enterprises and not government run.

In the real world what this law (should it become law, it’s only a proposal right now) means is that entrepreneurs can start scanning the web, find images that meet the “orphaned” criteria, and create giant stock houses full of free images they license themselves for cheap. They need not fear infringement lawsuits if they get caught including images that were not truly “orphaned”, because they need only trot out the proof they did a “reasonably diligent search”, and then the courts say “oh, okay, sorry about that Mr. Illustrator.” That hurts those who create new images, because media publishers looking for images can buy the rights to ones in these stock houses for pennies on the dollar and do not need to hire illustrators to create new images for them. It also hurts those who did create the images because their work can be taken unknown to them, even if they take all precaution with copyright notices on the art, thanks to one asshole with a scanner and minimal PhotoShop skills.

In the real world the Orphan Works act gives anyone carte blanche to use images they do not own with little risk even if they get caught doing it. That reduced risk will increase the number of legitimate publishers using these images many times over. Why not? It’s cheaper for them and the stock houses take the risk. At worst the stock houses, should they get caught, demonstrate they did that “reasonably diligent search” and they have to pay some undetermined fair market price to the copyright holder for use of the work and remove it from their stock inventory. How many times do you think that scenario will play out? One in every 100 uses of an image? I’m guessing that is a generous estimate. That’s pretty low risk, and with no ability to sue the infringer for damages past the cost of using the art, these stock houses are insulated from serious financial risk. Why do you think it’s internet companies lobbying for this thing? They are salivating over it.

The other problem with this proposed law is it is trying to fix a problem that does not exist, that being preserving creative works that have been abandoned from being lost to posterity. From a play found in an old trunk to Grandma’s rotting photo album, Orphan Works supporters seem to want to hang their hats on how much poorer a world it will be if these truly orphaned works cannot be preserved due to strangling copyright laws. Copyright law as it stands today does not prevent works of art, writing, film or other creative work from being archived and saved for posterity. There is an archiving exception to copyright law that allows for copies to be made to preserve a work, so long as it is not reasonably easy to purchase a new copy of said work and certain criteria are met. Both section 107 and 108 of the current U.S. Copyright Laws allow for the use or reproduction of copyrighted works, orphaned or not, for educational purposes, archiving and preservation, etc. Meaning you can make copies of Grandma’s rotting photo album even if you cannot contact the original photographer for permission. The main argument for needing the Orphan Works Act is a phantom argument.

The real reason for this proposed law, and the reason creators are up in arms about it, is that is will allow those who do not own the copyrights to a creative work to use it like they do own the copyrights to it. Plain and simple. One indisputable fact is that SOMEONE owns the copyrights to whatever the second party wants to use (unless it’s in the public domain), and it is not the second party. Those who create new works of art and literature think it’s bad that people who might have paid them to create a new piece of work can cheaply buy the rights to use some old piece of work from someone who did not create it in the first place. I also think that’s bad. Far from stimulating creativity and new creative works, it will hinder it. You will start seeing artists on the internet plastering big copyright watermarks across the center of pieces of art they put on the web, to prevent images from getting stolen and then becoming “orphaned” by the Orphan Works definition when they are not orphaned at all. You will start seeing artists not share their work on the ‘net for fear it will get stolen, PhotoShopped, and then considered abandoned and open to these stock houses.

This proposed law is bad for everyone except those who want to exploit it. You have until the 23rd to write to the US Copyright office and tell them that.


  1. Brett says:

    While I don’t agree with all of your conclusions, thank you for agreeing the original call to action was completely overblown and posting a reasonable response that does not resort to conspiracies and name calling.

    • joemcgarry says:

      You’re welcome. I agree with most of your points in so far as they go, but I just do not see any reason or upside to a law that allows anyone who did not create a work to be able to profit from it until it becomes public domain.

      • Brett says:

        I think that’s where I differ. I don’t see it allowing that. I see its primary reason is making a system where it’s easier to contact copyright holders to actually pay them. It could be as simple as a “phone directory” that makes looking up people easier.

        And they should get paid. As is now, that can be difficult. As is now, people do profit off of other people’s work, which is wrong.

        I do think the “best effort” is nebulous and needs to be defined better. It’s a potential loophole in the past bill’s language, and I wouldn’t have supported it in 2008 as written.

        But, to just create a directory to make it easier to contact folks (and nothing beyond that), I don’t see that as being an issue, which is a lot of what the current report’s suggestions focus on.

  2. Dennis Cox says:

    Great explanation Tom, thanks!

  3. dabston says:

    Well said, Mr. Richmond!

  4. Jeff Trexler says:

    One of the issues with orphan works as a concept is that it has expanded beyond its original, more limited scope in a way that benefits certain companies helping to fund the free-IP movement, such as Google. Back in the day, the bulk of the concern re orphan works was pre-1976 Act material still under copyright but whose owners had disappeared in ways that made the current owners all but untraceable, such as a corporate dissolution with no clear subsequent chain of title. However, since then orphan works has come to refer primarily to any material without a clear copyright notice, which in today’s era of digital replication means pretty much everything that isn’t sold on Amazon and a fair chunk of what is. This makes any talk of “reform” – a word I’m personally reluctant to use, since it gives any change a positive semantic valence – suspect among content producers of certain types of easily replicable material.

    Paying heed to Brett’s (sorry, “Brett”‘s!) caveats re Washington realpolitik is not inconsistent with devising & implement an effective strategy to make sure that this legitimate concern is met in copyright law – in fact, it would be wise!


I am close to adding a second caricature workshop in January in Orlando. Details here: http://www.tomrichmond.com/2016/10/21/second-orlando-workshop/

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