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[edit] The Legislation

On March 13, 2008, Marybeth Peters, The Register of Copyrights, addressed the U.S. House of Representatives Subcommittee on Courts, the Internet, and Intellectual Property regarding the problem of orphaned works and proposed legislation to deal with it.

This was a follow-up to the 2006 Report on Orphan Works[1], as requested by Senator Orrin Hatch and Senator Patrick Leahy, that was submitted to the Subcommittee on January 31, 2006. This report was drafted at the conclusion of a 2005 investigation into the problem of orphan works, which included public roundtable discussions on the topic.

After the 2006 report, "The Orphan Works Act of 2006" (HR 5439)[2] was introduced by former Chairman Lamar Smith. This bill was later absorbed into "The Copyright Modernization Act of 2006" (HR 6052)[3]. Since this bill was not addressed during the 109th Congress, it was brought up again during the 2nd Session of the 110th Congress.[4]

On April 10, 2008, the topic was addressed in an inflammatory editorial by Mark Simon, of Animation World Magazine[5]. Simon's article was subsequently passed around various fan communities and stirred mixed reactions, from panic to apathy. By April 12, 2008, the article had been linked on deviantART, various LiveJournals, and scattered web forums.

On April 24, 2008, a bill on orphan works was introduced in both houses of Congress. [6][7][8] Plagiarism Today, a blog that follows copyright and plagiarism issues, said of the Senate version that:

The Senate version of the bill is by far the most similar to the original. It offers only two major changes when compared to its 2006 counterpart.

A study of the current copyright registration system, to be completed within two years.
A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.

The “meat” of the bill, the limitation of damages if the copyright holder can not be found after a resonable search, remains very much in tact. Though the bill, like its 2006 counterpart, puts a higher burden on commercial use, it does make the works available for such purposes. [9]

Plagiarism Today said of the House version:

The House version of the bill is the more different of the two offering, several differences from both the 2006 legislation and the Senate version. The differences between it and the 2006 version are as follows:

A delayed effective date for visual works. Would start either in 2013 or after the databases or after two searchable databases are available to the public for visual works.
A study of the current copyright registration system, to be completed within two years.
Those seeking to use an orphan work must first file a “Notice of Use” with the Copyright Office.
A requirement that uses of orphan works be identified with a symbol, to be created by the Copyright Office.
In cases where a copyright comes forward after an orphan work is used and the work was previously registered, courts can take into account the registration and may value the work higher, awarding more money.

It is clear that the House version is designed to placate the fears and worries of visual artists, who were primarily responsible for the failure of the first bill. It delays the effective data for visual works, adds extra burdens on those seeking to use an orphan work and can award greater damages if the work is properly registered with the USCO.[10]

However, as with the house version, the overall effect is still the same. Though visual artists will likely find this bill preferable, I doubt that many will consider it an adequate effort to address the issues raised.

[edit] Fandom Reaction

There were several waves of fandom reaction to this bill. The first wave occurred in 2005. A second wave occurred in 2006. A third wave occurred in 2007. A fourth wave occurred in 2008. Each wave generally had different participation, involved different fannish communities and had different levels of hysteria attached to it.

[edit] 2005

2005 had several mentions inside of fandom discussing the need for legislation that dealt with orphaned works. [11] This initial interest by fandom was kicked off after March 9, 2005, when Illlustrators' Partnership sent off a letter which said:

March 9, 2005

Dear Artist,

The Illlustrators' Partnership is submitting the following letter to the U.S. Copyright Office. We invite you to read it, consider it, and if you choose, join us in signing it.

The Copyright Office is seeking to examine the issues raised by orphaned works, that is, copyrighted works whose owners are "difficult" or impossible to locate. The "Orphan Work" study was announced January 27th, requesting written comments by March 25 from all parties who would be affected by a change in the law.

This study has been prompted in part by lawsuits filed by Lawrence Lessig, founder of Creative Commons, a vocal leader of the international "Free Culture" movement. It's the contention of this well-funded movement that copyright protection for creative work restrains creativity and free speech. They've embarked on a many-faceted effort to limit or roll back copyrights throughout the world.

The Complaints ask the Court for declaratory judgments that copyright restrictions on orphaned works violate the Constitution. A victory for the plaintiff would force works of art into the public domain even though their copyright has not expired if third parties wishing to exploit the work find it "difficult" to locate the copyright holder.

The following letter is long because we've tried to address the specific issues raised by these Federal challenges, but we hope you'll take the time to read it. If you wish to join us in signing, please reply by e-mail with your full name and country. You may also add your expertise: commercial or editorial illustrator, cartoonist, architectural illustrator, dimensional illustrator, medical illustrator, painter, artist's representative, etc. You may also add any professional affiliation(s).

With Kind Regards,
Brad Holland and Cynthia Turner for the Illustrators Partnership of America

On March 23, 2005, Science Fiction and Fantasy Writers of America, Inc.'s Jule L. Sigall published a letter titled "Orphan Copyright Statement" which addressed the Orphan Works issue and asked members to take action. [12] The letter is notable because it made the leap from art to the written word, a concept that would be brought up in 2008 when the topic was revisited.

[edit] 2006

The reaction to the Orphaned Works proposal in 2006 was less hysterical. Most of the people in fandom discussing it were professional artists with ties to the fan community, academics, and people interested in copyright.

Some fan bloggers, such as Justin Jarh who posted on February 5, 2006, recognized the beneficial aspects of this measure. [13]

The Illustrators' Partnership was active in encouraging people to object to this legislation in 2006[14]. Bloggers such as Damon Kaswell, who posted on March 1, 2006, weighed in on the Illustrators' Partnership's articles. [15]

The Napping Cat's Dream community discussed the topic in March 2006. [16]. The community did not have a consensus regarding how this issue affected fan artists and which side was right. Ilya Pas de la Serna's March 23 comment demonstrated that, saying

I understand you come from the background of a creator, and rightly you deserve to be rewarded and make commecial benifit from your creations. A copyright is indeed an important thing. and truely, it is only just that you and only you make money from your creations.

But the bigger picture is what you are missing. That peice of artwork you just did, thats not fully original, and i dont say this to in any way say that you are not creative, original or that you are stealing anyone elses work, but the fact is you had some inspiration, some influences, all of that good stuff. with the vast amount of culture that is out there, in all likelyhood, your work is in some way derivitive from one or many other works. thats just how culture works, we take things and change them for our times. hence, things that have stopped being comercially viable to thier creators, must and should enter the public domain so that culture as a whole can use them. [17]

The comics fandom picked up on the issue on CCN when ThatMainChick posted about the issue, having heard about it on DeviantART. [18] The response on the forums was mixed with some people supporting it, some people not and some people seeing a whole gray area.

Erica Well is an example of one such person discussing the situation. She did this on a August 29, 2006 post titled " Our Rep. Jim Cooper on Orphan Works Act!" [19]

[edit] 2007

There were very few mentions in 2007. The few references that happened tended to be from people in fandom with a vested interest in keeping up with copyright law. One such reference was on May 8, 2007 by cowdefender. [20]

[edit] 2008

On February 26, 2008, Illustrators' Partnership posted an article to their site called "It’s Back!" [21] which said:

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 [22]

It would take almost a month before the issue would begin to start getting mentioned more widely in fandom and almost a month and a half before it picked up steam.

On March 17, 2008, tatiana posted a thread to ConceptArt.org's forums titled "Artists' Copyrights in jeopardy? Orphan Works Bill." [23] The post said:

I just happened to see this discussion going on over on CGTalk just a bit ago and wondered if you all had some additional points to bring up...or were even aware of the upcoming hearing as regards to "Orphan Works" which evidently has broader applications than what you might think initially...

As I haven't gotten Brad Holland's permission to repost all of the info, I've posted just a snippet and the link to the CGTalk discussion thread. My apologies if this has already been posted in another thread, but I did not find it after a quick search on CA.

On January 29, 2007, a lead attorney for the Copyright Office warned us that under their plan any work not registered with a private sector registry :::would be a potential orphan from the moment it was created. This means you would not only have to register all your published work, but also:

- Every sketch or note on every page of every sketchbook;

- Every sketch you send to every client;

- Every photograph you take anywhere, anytime, including family photos, home videos, etc.;

- Every letter, email, etc., professional, personal or private.

Much more detailed info at the below links (which also has additional links to other sources).

CGTalk thread:

http://forums.cgsociety.org/showthread.php?t=609199

IPA website:

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

On March 28, 2008, Zaxser posted a thread called "Copyright Law Goes To Crazy Town" on Megatokyo's forums. [24] She linked back to tatiana's March 17, 2008 post which referenced comments from the Copyright Office from January 29, 2007.

On April 10, 2008, Mark Simon of Animation World Magazine published an article called "Mind Your Business: You Will Lose All The Rights to Your Own Art, Mark Simon is mad as hell and, in this month's "Mind Your Business," he tells you why you should be too." [25] This article was soon discovered by a number of people on sites like DeviantART and LiveJournal. People reacted to the article.

On April 11, dgtrekker posted a link to Mark Simon's article on FanLib's forums and set off a discussion which assumed that it wasn't a big leap to go from images to fiction. [26] Several people commented to point to the legislation in question and that it dated back to 2006. [27]

By April 12, 2008, the Dragon Ball Z community was discussing the situation on the Dbz Fanfic Salon. [28] Raditz Silver started the discussion by linking to Mark Simon's article.

The DeviantART community had also discovered Mark Simon's article. There were a whole slew of responses by April 12, 2008. GraySapphire wrote a blog entry called "United States Trying to Legalize Art Theft" [29] and linked to a DeviantART petition to protest the legislation. On April 12, 2008, Obsidian-Fox wrote a DeviantART news entry titled "Orphaned Work: Serious Copyright Issues?" [30]

Some people felt that the Orphaned Works legislation would invite the government and others to steal fan artist's work with out their permission. Other people had a different read on the situation. They began to counter those posts by April 12, 2008 on DeviantART in posts like noraneko's "Ignorance Isn't Bliss & Art Theft Won't be Legal." [31]

On April 13, 2008, Joshi38 posted a news story on DeviantART titled "Orphan Works, A Response from the Creator." It sought to dispel some of the misinformation floating around the site. [32] The topic continued to be discussed on DeviantART on April 16, 2008. [33]

The situation on DeviantART quickly spread outside the English only community into Spanish language [34] and German language communities.

The LiveJournal community had picked up the discussion by April 12, 2008. The conversation came from a number of places, mostly from places where people had seen the link to Mark Simon's article on message boards, by the anime and furry communities, and on DeviantART. One post was by ken_redtail on artists_beware. [35] It was less inflammatory in nature than some of the posts being circulated on DeviantART, saying in part:

What it *does* mean, however, is that people who create artwork would have to be more careful about where and how they display their stuff, assuming this bill becomes law at all. It pops up every few years and has thus far never become law.

The *intent* of the legislation is actually a good one. It's designed to make it easier for places like libraries and museums to protect their collections, and for people who commissioned work from artists to make uses of them if they can't find the original artist to get permission. Did you know, for example, that unless there is a contract or something giving you the right, you're not allowed to make copies of your own wedding photos if someone else took them? Orphaned works legislation would protect things like that. [36]

Another post was by eyetosky, which said, in part:

The Orphaned Works Bill ...means anybody can steal from us whenever the heck they want. It's not just artists, but photographers and even simple anyones who have the silly notion that they could post their family photos online without it getting slapped into a medical brochure for toothpaste or something similarly vile. [37]

eyetosky shared several links in her post that were being shared in a number of other posts on LiveJournal and DeviantART. These included The Illustrator's Partnership Orphan Works resource page, Recording of an interview between Mark Simon and Brad Holland, has some interesting info about the bill's creation near the middle-end The American Society of Media Photographer's report, and A blog following the whole shebang.

As links came in on LiveJournal which pointed that the legislation in question dated back to 2006 and there is nothing in committee regarding this, a few public LiveJournal posts were deleted, made private or FLocked. One of the posts got picked up on metafandom on April 15, 2008. [38]

The issue's appeal was still limited by April 12, 2008. It had not really been discussed on mailing lists, on Xanga, on InsaneJournal, on Yahoo!Groups or Quizilla.

On April 14, 2008, Neil Gaiman addressed Orphan Works in his blog in response to reader questions about it. [39]

On April 14, 2008, Melissa Wilson wrote an editorial about Orphan Works on Firefox News. [40]

On April 24, 2008, a bill on orphan works was introduced in both houses of Congress. [41][42][43]

[edit] External links

[edit] Discusssion

[edit] On DeviantART

[edit] On LiveJournal

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The Orphan Works Problem and Proposed Legislation

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