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Copyright & the continual redefining of "Orphan Works" ideology : Part I

I know! I’m bored already, and that’s just the title. So I’ll start this mushy bunch of legal tinker’s-cussery with a disclaimer: This is not legal advice, and in no way can this article or its author claim to be an authority on Orphan Work Copyright Law in the US, EU, Canada, or the UK, nor can he claim to be insightful, or even mildly entertaining. He is not a lawyer (thank the Ancients!), or an expert, he has for some reason gone into third person, would rather be painting, and the polarizing ideologies surrounding "ownership" are such that he’s trying hard not to stick his eye out with a dull fork. Whereas I've researched and been active on the surrounding material over the years, and I’ve tried to make things fairly readable, all I can guarantee is that this information is correct in its history and that it comes from the perspective of an American freelance illustrator working over the last two decades.

So, what are Orphan Works? The ideology generally goes that there’s a large amount of Work out there; photography, illustrations, music, film, etc., whose rights-holders cannot be identified or located to grant license or permission of use, hence they are “Orphaned”. Some of these works are seen worthy enough to be restored and archived by educational institutions and non-profits which most of us would agree as a noble pursuit. However, brows start to furrow when the unidentified work is seen worthy enough to be sold, collectively licensed, traded, re-authored, printed on collectible salad spoons, or used in some capacity, for indefinite periods of time, without the original maker’s knowledge.

Why the big fuss? Well, part of that answer won’t become apparent until a couple years after the changes to copyright are in place. For now the major fuss comes from defining the language, intentions, and potential misuse. In Orphan Works theory, everyone (individual and corporation alike) that jumps through a legal hoop or two, would enjoy new collaborative opportunities, innovation and creativity, with work not yet shared in the public domain. Sounds good on the surface, but it’s a different story once you find you’re the maker of what’s been inadvertently shared. Everyone who jumps through those hoops, still doesn’t have the makers’ license or permission, but will be granted the right to commercially publish the makers work, and enjoy retroactive immunity and defense if and when the maker becomes identified. (He puts the fork down on the table..) Somewhat conversely, in current copyright law, it is only the maker who is granted retroactive protection from folks using their work, with a potential of added responsibilities. Theoretically, the maker won’t lose their existing rights, but the potential of infringement will have grown substantially, if their work is not already registered with the Copyright Office.

Actually, I've a scenario from 2004 that throws light across at least one of the problems at play. I’d been emailing a friend. We were of very similar minds in terms of world politics, so I engaged him about a couple different world issues, and also asked about the anti-Orphan Works petition from the IPA I was emailing to interested folks. Many of us at the time were spreading the word, to inform our Representatives to vote the Orphan Works Act down. Now, where we clearly agreed on all other World issues, the Orphan Works Act appealed to him, and for a very specific reason. A couple years prior, a book deal of his was stymied by an estate, for the use of old family pictures. He liked the old feel in a group of seemingly unowned family photos he bought from a 2nd hand shop, so he published them in his book. After the book was selling on the shelves, the estate of the family in the photos found them in the book, forced him to remove them and/or pay retroactively to use them, and he ended up taking a loss on all of the profits he expected to make in one go.

Did this friend deserve such treatment for what he thought was inside the range of fair use? In my opinion, of course he didn’t. The folks in the photos weren’t misrepresented, nor was the estate a group of creatives that spent hours making those photos. I truly empathize more with my friend, but the hard truth is that he could have hired an illustrator or photographer and made some money on his book. The fuss is that we can’t all be protected under copyright in similar ways.

Brief History
Current copyright law in the US was largely fashioned after The Berne Convention. Founded in Berne, Switzerland in 1886, amended a number of times across Europe, leading to the establishment of The World Intellectual Property Organization in 1967. The US joined the Convention in 1988, and has continued to follow its policies for internationally registered works.

In 1914, Victor Herbert founded one of Americas first Performance Rights Organizations, The American Society of Composers, Authors and Publishers (ASCAP). Forming originally to protect written compositions of music and literature, and with the advent of radio in the 20’s began the practice of collecting license fees from the users and broadcasters of ASCAP members’ work. This is why for the last 100 years, every time you hear a tune on the radio, ASCAP sees that each performer gets a royalty for the use of its broadcast.

The Modernist movement begins around the 1900’s. Filled with “collaborative” works made of “found objects”, Duchamp's bawdy “ready made” L.H.O.O.Q. (mustached Mona Lisa) being one of the most popular, they quite cleverly brought to question many aspects of copyright and ownership. The temporary nature of materials used in some Modernist period work has also proved difficult for preservation, which nicely mirrors the philosophy.

It’s also important to point out the late 40‘s to mid 50’s as a time that changed ownership ideology and class in the American consciousness. It was a time that went from New Deal creativity, Free Speech and boons to the poor and middle classes, into McCarthyism, the beginning of television, and recording with magnetic tape. Charlie Chaplin, Woody Guthrie and a social minded faction of creatives, praised the power of our rights through Unionization, while keeping-up-with-the-Joneses consumer ownership became the suburban status quo.

The 60’s and early 70’s turned ownership polarity on its ear yet again. A manufacturing boon, photocopying machines were produced in 1960, as early as 1963 there were compact personal cassette recorders, and 1971 brought about the first consumer video tape recorders. There were brilliant pieces of counter-culture produced from these advances in tech; pirate radio, zines, multitrack and mix-tapes, but it got a whole lot easier to skirt copyrights with minimal effort.

The US Copyright Act of 1976 went into effect in 1978. The Act not only changed time limitations from fixed units and renewals, to terms after the death of the original author and their inheritor. It also changed the language and doctrine of copyright in the US, including that of “intellectual property”, computer processing, programming and data, and most importantly it also eliminated the need to preregister copyrighted works with the subjective but effective notion of “fair use”. Section 408 of the Act states that registering is not a prerequisite for copyright protection, but will be required if and when one seeks recourse to infringement in court. In my opinion it still stands as the best combination of copyright ideologies, being the fairest for the author, artist, and creator of works.

There was a time when it would be obvious not to sell a copied painting no matter how obscure you thought it to be. Before 1976 there was a general ideology of protective fear amongst even big ad agencies. Having an illustrator ape a particularly coveted idea, or painting style outweighed the risk of being sued. After the music sampling law suits of the 80’s it became even more standard for DJs and mixologists to research permission, as it’s a fairly subjective matter what accounts for enough change, depending on which Judge you land.

1993 brought about the European Union's Council Directive, which lengthened the duration of the Berne Convention from 50 years after death of the maker to 70 years, and to alleviate problems in educational archiving and institutional restoration of works. Back in the States in 1998, a similar educational amendment was made, Sen. Sonny Bono made it possible to extend subsisting copyrights to a maximum of 95 years, and The Digital Millennium Copyright Act made changes in anti-piracy measures, while amending both the liabilities and responsibilities of internet service providers.

Recent Action
The Orphan Works Act of 2006 H.R. 5439 went to judiciary committee in 2006, it was introduced to the House, and was never voted on. In 2008 there was a move to further research the plausibility of Orphan Works with the Shawn Bentley Orphan Works Act of 2008. It was introduced to Senate committee, passed, and was researched by the Copyright Office in the following two years. Leading up to 2006 there was a lot of activism on the side of illustrators all across the planet, (not unlike what we saw with the formation of PACT) and we ended up with a collective to combat Orphan Works in 2002. The Illustrators’ Partnership of America blog (IPA), and The American Society of Illustrators Partnership (ASIP) site have truly been the font of knowledge on these issues since that time, and it’s founding members spoke in opposition to Orphan Works in Senate committee sessions. Brad Holland, Cynthia Turner, and the founding groups of illustration societies have since written extensively on copyright, and with the help of the Honorable Bruce Lehman, (former Commissioner of the U.S. Patent and Trademark Office), held a number of round tables on the building of a national image Copyright Bank. This was the culminating effort beginning in Geneva for the formation of the ASIP. I’d highly recommend reading through the articles and resources at the ASIP and IPA, to give a good idea of where the recent history of Orphan Works has taken us, and where we should be headed from 2008 on.

At the end of April 2013, the Enterprise and Regulatory Reform Act was granted royal assent in becoming the UK’s first Orphan Works copyright reform law. As anticipated by the lack of debate given to the Association of Illustrators in London, there were “important changes pushed through on an irrelevant [poison pill] bill, regarding copyright which directly affects visual artists.” The positive is, for now they are including some licensing from artist approved representative bodies, through what they’re calling a “Digital Copyright Hub”. The negatives are still substantial. To start, Orphan Works licenses can be issued for commercial use. Big private companies will still be the first to take fees for collective licensing schemes, their “diligent search” is as subjective as it’s ever been, the licenses can be issued for 7 years, with access to renewal, and there doesn’t seem to be retroactive damages allowed individuals as of yet. So, we’ll have to keep an eye on this testing ground, and what we can learn from it.

Back to the US, in March 2014, Rep. Judy Chu (D-CA) released the members of a newly formed Congressional Creative Rights Caucus, created as a “new effort to safeguard creative and intellectual property”. Time will only tell what that rhetoric will mean in the future, but while we’re waiting, I’ll try and find my fork.

Making & Sharing
When debating the merits of Orphan Works ideology in the past, the fists start to come out with the notion of; giving those who share and use things, equal rights to those that make or conserve things. There are many sides to the copyright fence, and most of us sit on the edge of more than one of them. Illustrators are inherently makers. Throughout our lives we spend countless months developing our skills; constant study and practice, finding the most successful ways to lead the viewer to recognize some elusive vein of believability, that magical glimpse into a world impossible until we bring it to Light. We work part-time day-jobs, convention after convention, promo after promo, in order to light a pathway strong enough for a few folks to take notice of our work. Some of us go to college, some of us don’t. Some of us actually get a couple higher profile gigs that pay the rent. A smaller group of us land covers into our middle age, are recognized with Awards or Guests of Honor, and an even smaller group has the ability to do all that, raise a family, and have a few extra bags of “Freelancer Chow” left over in the cupboards. What unifies us all, is that this profession requires decades of hard work, a devotion to Craft that glows through the work we create. I wax collective hardship here, not to say our work is harder than the work of anyone else, I do so because; school trained or self trained, traditional or digital, big gigs or small, old generation or new, I consider our painting and sculpture a fair step more labor intensive than the snapping of family vacation photos, taking phone vids of Pets-Duz-Adorable, or sharing any image that’s been stripped of it’s metadata by one’s favored social media network. Making differs from sharing. We may equally share things, but we do not equally make things, and those of us who make a living at making, don’t stand to gain anything under a new Orphan Works law that we don’t already have. At best it would be an inconvenience of registering our work, but at worst we’d lose the ability to sue for retroactive damages, opening the flood gates to other bureaucratic shenanigans we’d not be able to stop in future.

Since it took a number of years for Educators, Libraries and Universities to be granted rights to archive and share, we are another distinction that needs mentioning. We may not be makers in the traditional sense, but using undocumented work for the purposes of preservation, documentation, research and education, is different than using it for profit. The European Union’s Orphan Works Directive was in some ways born for the archiving and restoring works by educational and non-profit institutions, and I think if there’s to be any changes concerning OW in the US, it should revolve around the task of Libraries and Educational Institutions to protect and archive work alone. Sharing locally and with the same lending caveats put on work with known authorship.

There are then those involved with Open Source, Public Domain, or Creative Commons, from where much of the movement towards Orphan Works springs, and ironically as it sounds, I take part in myself. I applaud creatives willing enough to share, those makers who’ve based their careers on giving freely, and are able to jump the hurdle of making money because of it. Hats off! The majority of makers however, have a hard time making more by giving more away. Those of us who understand the merits of Creative Commons, put a CC license symbol on our work, and open it up to the Public Domain. The Orphan Works distinction lies in that some of us are willing to freely give some of our rights away, rather than having them diverted and made useless without our knowledge. Currently there is nothing hindering folks in placing their work in the Public Domain, but an Orphan Works environment would however hinder makers with added risks and responsibilities to keep their work out. The danger in the language of Orphan Works is its failure to recognize us as either sharers or makers. Or as Brad Holland put it, they “fail to distinguish between copyrights held by corporations and those held by individuals. This failure has consequences because corporations don’t create; individuals do.”

Chuck Lukacs Portland, OR 2014
Stay tuned for Part II

Links

Orphan Works Act of 2006 H.R. 5439

Shawn Bentley Orphan Works Act of 2008

The Illustrators’ Partnership of America

The American Society of Illustrators Partnership