FUD (Fear, Uncertainty, and Doubt) is the term for any strategy intended to make a company’s customers insecure about future product plans with the purpose of discouraging them from adopting competitors’ products. FUD is also an internet term for rumors or emotional responses to issues that are passed off as facts.

In the last week or so the term “FUD” has been bandied about over the reactions to the proposed and recently released Orphan Works Act of 2008, with many people accusing folks like me of emotional reactions to imaginary issues. While some of that has been going on, there is plenty about the actual bills, now in final form and available for study, to be deeply concerned about. That said, I’m afraid I’m a little guilty of spreading some FUD about the Orphan Works Act of 2008, albeit not on purpose. I relied on the information others were sharing, and I have found some of that to be misinterpreted and some flat out erroneous.

I downloaded and throughly read the bill(s), and while I do not think they are a very good solution to the “problem” of orphaned works, it is not exactly the orge that many people have been saying it is. I’ve been vocal in my opposition to the acts mostly based on information I’ve read from others. I am still opposed to the bills in their current form as I think they are too ambiguous and will still do some damage to professional illustrators and other creative professionals. However there are some attempts to prevent that damage… they just do not do the job.

Here are the facts on H.R. 5889 The Orphan Works Act of 2008 and S 2913 The Shawn Bentley Orphan Works Act of 2008, the house and senate versions of the bill respectively… what they try do and what they one can reasonably expect them to do: (more…)

EDIT- Having read the actual bills on release, I have a number of corrections and futher information in accordance to the actual bill’s language and content. I’d recommend reading this more recent blog post to separate the facts from the FUD.

Tuesday the Illustrator’s Partnership received draft copies of the 2008 version of the Orphan Works bill I’ve discussed so often here. The bill itself was released yesterday. I’ve read and blogged a lot about this issue. Here’s a link to the articles I’ve done on this horrifically misguided piece of legislation.

A week or two ago I found this sarcastic but reasonably well written and equally misguided “Six Misconceptions about Orphaned Works” post that tries to debunk the proposed Orphan Works legislation as not being the monstrosity creators think it is. The author is incredibly naive in that she believes the Orphan Works bill won’t change US Copyrights in a fundamental way, and she cites current copyright law in her debunking attempts when those laws will no longer apply in several real ways if the Orphan Works bill becomes law. She sees it as a way to be able to archive and possibly preserve works that would otherwise be lost in time because they are truly “orphaned”, like Grandma’s family photos. That is of course one of the simple reasons behind the legislation, but nothing is simple and this proposed law is like giving someone the right to scratch an itch they have but they need to use a sledgehammer to do it.

Let’s debunk her “misconceptions”. Please note I did not copy her entire text here, so please visit the original post for the entirety of her arguments. By the way, in this context my use of her copyrighted text is considered “fair use”:

Myth #1: “There’s legislation before Congress right now that will enact major changes in US copyright law regarding orphaned works! We have to act immediately!”

She says: Actually, no, there isn’t. There may very well be a bill introduced this legislative session, but no such bill has surfaced yet.

That was true until yesterday, but what did that have to do with anything? Bills are lobbied for and votes assessed long before they are introduced officially. It’s over late to lock the barn door after the horses have run off. Previously proposed bills HAVE been introduced and were not passed, and there is no reason to believe there is any major changes to the new bill’s language. Those who may be lobbying for the Orphan Works act weren’t waiting for it to be introduced to start working on getting votes for it. Why would we who are going to be seriously affected by it wait? Anyway it’s out now, so it’s a moot point.

Myth #2. “If I want the copyright on my art to be recognized, I’ll have to pay to register each piece!”

She says: That isn’t the case now, and it isn’t likely to be the case even if an orphan works bill passes. In current copyright law, copyright protection exists “from the time the work is created in fixed form” — in other words, the instant I hit “post” on the form I’m typing this blog post in, the instant you step away from the canvas, the instant you hit “save” in Photoshop, that work is “in fixed form” and protected by copyright. This applies to all literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, and architectural works, as well as sound recordings.

Huh? Nobody is arguing that the work itself isn’t copyrighted just like it as before. It’s how that copyright is protected that is at issue here. The ongoing discussion is how to create a way that someone wanting to find the creator of a piece of artwork be able to do so under a strictly defined guideline. The 2006 Orphan Works Report specifically talks about the establishment of a registry (page 106), and how they believe a private registry (i.e. a company that does it as a business) is the best way to go.

Most of her “arguments” against the perceived misconceptions of the Orphan Works bill are predicated on the fact that it will not change existing copyrights as they are applied to creative works. She repeatedly restates this. She’s right, it only changes how those copyrights are protected. Under Orphan Works logic, even though it’s still illegal to steal a car if you can show you didn’t know who owned it and made a “reasonably diligent search” to find the owner but couldn’t, then it’s okay if you drove it around for a weekend or two… but I digress.

The entire fiasco of the Orphan Works idea hinges on the vague description of a “reasonably diligent search” that needs to be performed by a party wanting use a creative property they have found somewhere that they do not have an immediate way of finding the creator. What is a “reasonably diligent search”? A Google search for “guy who did this cool caricature of Bono?” Discussion of creating a registry for creative works has been a part of this whole thing since day one. The logistics alone of individually registering each piece of art I’ve ever done is staggering, let alone my having to possibly pay a fee. It’s a pipe dream to think that an Orphan Works bill can exist without a clear definition of what constitutes a “reasonably diligent search”. She’s right in that it’s not what the proposers of the Orphan Works bill want… they want anyone to be able to use anything they find without paying and place the onus on the creator to prove they have infringed on them WITHOUT making some effort to find them.

According to the Illustrator’s Partnership’s examination of the actual bill:

The language in the draft confirms our warnings. If this bill passes, you’ll be forced to clear all your secondary licensing rights through at least two government certified databases – or risk orphaning your art.

(more…)

I’ve written a number of times about this scourge of evil that lobbyists are trying to push through the legislature. Basically it’s a law that allows publishers or whomever to use creative works without paying the creator if the creator cannot be located by the vaguely defined “reasonably diligent search”. That’s bad enough, when any copyright violator can claim the made a “reasonably diligent search” if busted by the original creator, but previous incarnations also limited the amount a creator could receive in a court case so that it would cost the user of the creative works little or no more to try and use it without a real try at a search for the creator than it would if they contacted them and paid for it up front.

No word if that kind of language still exists in the “New and Improved” Orphan Works bill being introduced next week, but there is disturbing news that several groups that opposed the bill last time around will not be doing so this time. According to the Illustrator’s Partnership, several “artist’s groups” have withdrawn their opposing in exchange for concessions that benefit their groups. No names and no details beyond that. The full release from IP:

FROM THE ILLUSTRATORS’ PARTNERSHIP

The New “Improved” Orphan Works bill is due out next week. We expect it to be much the same as the last one. Unfortunately, the Orphan Works landscape has changed.

Several groups which opposed the bill last time will not oppose it this time. They’re ready to concede defeat in return for concessions for their groups. They’ve also insisted that no other visual artists speak out against it. They say we must all capitulate in order not to endanger the concessions they want. They say we have to show Congress that artists speak with one voice: theirs. That creates a problem.

Not all visual artists have the same stake in copyright protection. Who owns the copyrights to your high school yearbook photos? Your wedding photos? Bar mitzvah pictures? How often has that ever been an issue?

If you don’t make your living primarily by licensing copyrights, you may not have the same stake in this bill as those of us who do. Moreover, visual arts groups don’t exist by licensing copyrights; artists do. So whatever concessions might be acceptable to an artists group might still harm the careers of artists.

We believe the way to speak with one voice is not to submit to a bill that would:
- Create uncertainty in commercial markets;
- Nullify the exclusive right of copyright and therefore
- Reduce the value of your work;
- Threaten the privacy protection afforded by current copyright law; and
- Invite retaliation from abroad.

Instead, Congress should be lobbied to draft specific, limited exemptions that permit the use of true orphaned work. When we’ve seen the new bill, we’ll provide you with suggested language for writing lawmakers. In the meantime, you can help by continuing to spread these emails to any interested party, both in the US and overseas.

Remember: the US Orphan Works amendment is not an exception to copyright law to permit the archiving and preservation of old, abandoned works. It is a license to infringe contemporary works by living artists worldwide. Its goal is to force these works into private commercial US registries as a condition of protecting copyrights.

Coerced registration violates international copyright law and copyright-related treaties. To concede defeat on it is to knock a hole in copyright law and admit a Trojan horse.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

That does not sound good, but I will be interested to find out which artists groups are doing this and what the “concessions” are. There is a vast copyright search database that companies must search prior to using or copyrighting things like names or slogans, so there should be one for general creative works if such a bill is to function as a law.

I’ve written several times about the Orphan Works legislation, and it’s implications on freelance illustrators. This post describes it best, but here it is in brief: The Orphan Works Act is a change to copyright law that allows any party (publishers, advertisers) to use a piece of intellectual property (a photo, illustration, cartoon, etc.) if the owner of the copyright of said piece of intellectual property cannot be identified or located. The law requires a ‘reasonable effort’ to search for the copyright owner, but does not define what a ‘reasonable search’ entails. The law also limits the money that can be recouped by the copyright owner even in they notice their copyrighted work was used without being contacted, and somehow prove the user did not make a ‘reasonable effort’ to find them.

Yes, it’s that bad. A license to steal and then claim that a “reasonable effort” was made to find the owner of the original copyright if busted.

The original bill died in congress, but it turns out it was just hibernating.

FROM THE ILLUSTRATORS’ PARTNERSHIP

It’s Back!

Just when you thought it was safe to draw a picture without putting a copyright symbol on it, the Orphan Works bill has returned.

Orphan Works “will likely be a priority…this spring” for the House Judiciary Committee, writes Andrew Noyes in the National Journal, Feb. 21, 2008

According to Noyes, “American Library Association copyright specialist Carrie Russell said her members are ‘excited about having orphan works legislation’ move this session,” adding that if it does, “‘we’ll be dancing in the streets.’” But the article notes that “last time around,” artists did a different kind of dance:

“The Illustrators’ Partnership of America argued in letters to lawmakers last time around that the bill was written too broadly and would have exposed artists’ work to infringement upon creation.”

And so it would have.

While we won’t judge the new bill until we’ve seen it, we’re still concerned that it may be written so broadly as to force artists to rely on registries or other formalities as a condition of protecting their copyrights. Forcing artists to rely on registries by exposing unregistered work to infringement is coerced registration. And coerced registration is at the heart of the orphan works debate.

Coerced registration violates the spirit of international copyright laws and trade agreements. It invites retaliation from overseas. It would turn artists into bookkeepers. It would force us to spend countless hours filing and maintaining countless copyright registrations in a futile effort to monitor infringements — futile because no registry can ever protect artists from infringement, which can occur anytime, anywhere in the world.

Since 2006, when the first bill was called back to the shop for repairs, registries have become a hot topic among those wishing to sugarcoat it for quick passage this fall. We’ll have more to say about coerced registration in future emails. We think it will be central to the debate over Orphan Works this time around.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

For additional information about Orphan Works developments, go to the IPA Orphan Works Resource Page for Artists