The Animation Options Blog

Imagine a system of protection for content creators that required you to register your work in a centralized government respository, at your own expense, before you could file an infringement suit in court. Imagine that this monopolistic repository charged ever-increasing fees, with no competitive pressures to drive costs downward. Imagine furthermore that you were required to register your work within 3 months of publication or prior to infringement in order to recoup attorney’s fees and receive statutory damages, and that you were in any event at the mercy of corporate interests with powerful legal teams and deep pockets. And as for international protection, forget it - the system effectively washed its hands of that arena. Finally, after all this, imagine that the system prescribed that your work should ultimately become part of the public domain - to be used by anyone in any manner that they wish - irrespective of your wishes or intentions as represented by your descendants. And then visualize how this system could be exploited by corporate interests for commercial gain at the expense of the very individuals it was purported to protect.

Can you picture that? Shouldn’t be too difficult, because it’s our current system of copyright protection: well-meaning, flawed, subjective and increasingly outdated. However, to listen to some of the opponents of the Orphan Works legislation currently working its way through Congress, you’d think that a full-scale assault was underway on the Constitution of the United States (insert Dick Cheney joke here).

I blogged at length on this topic a couple of days ago, so the point here is not to rehash. But there are a few ignorant misconceptions being irresponsibly promulgated as fact that must be addressed in the interest of informed discourse.

MISCONCEPTION #1: “All of your existing works will effectively be orphaned with the passage of this bill into law.”

This distorted reading of the pending legislation is predicated upon the misinterpretation that content owners/creators will be required to register their works in non-existent databases in order to keep them from turning into orphaned pumpkins when the clock strikes twelve. The Orphan Works legislation winding its way through Congress does indeed propose databases (both public and private) as one way for owners/creators to register their ownership, but THE USE OF SUCH DATABASES IS NOT REQUIRED TO RETAIN COPYRIGHT OWNERSHIP OF YOUR WORK. (Please take a second and read that line again.) Furthermore, the lack of identifying marks on a work is not in and of itself sufficient cause to consider the work “orphaned”. Here is the language to that effect from H.R. 5889:

(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I)

Just as you are not currently required to put your name on your works, nor affix a copyright date, in order to enjoy copyright, neither are you required to do so in order to protect your works from being considered as “orphaned”. Copyright is still yours as soon as your work is fixed into tangible form:
http://www.copyright.gov/circs/circ1.html#hsc

(Having said that, common sense should dictate that the more ownership information you provide on any piece of creative content, the better. It’s in your interest to make it easy to know who created your work, and how you may be contacted.)

MISCONCEPTION #2: “These privatized databases will be free to charge whatever they like to register your work.”

Of course they will be free to charge whatever they like, but so what? In the first place, the use of these registries is not REQUIRED. In the second place (simply for the sake of argument), when have you ever heard of a registry service in which fees went UP over time? Are URL registries getting more expensive every year, or less? Are web hosting services getting more expensive every year, or less? (Oh, wait… I just thought of a registry that is free to increase their fees with no competitive recourse: our present-day U.S. Copyright Office.) In the third place, the Orphan Works legislation clearly states (as one of four minimum requirements for due diligence on the part of content users):

use of appropriate databases, including databases that are available to the public through the Internet

Got a website with your work on it? Then you’ve got a database that is available to the public through the internet.

MISCONCEPTION #3: “You will need to scan all of your existing works, at your own expense of up to $100 per piece.”

Ok… first of all, for those of you who are paying $100 a pop to have your works scanned, I’ll do it for $75. No, wait - make that $50! And then I’ve got a bridge in Brooklyn to sell you… cheap! Who in their right mind pays that to have anything scanned? More to the point, you don’t have to scan any of your physical works in order to protect them. The very fact that they are fixed in physical form qualifies them for copyright protection and, as mentioned above, identifying marks are not even a prerequisite for protection against “orphanage”. Obviously, your work can be physically stolen, the same way that someone can steal your camera or your car. So if you want to “lojack” them through scanning, that’s certainly your prerogative. But if you truly can’t sleep at night over this (and don’t want to spring a hundred bucks for a scanner), you can always take the “low-fi” approach, buy one of those “do-it-yourself” rubber stamp kits for $10, and tap the back of each drawing with your name, phone number, email and copyright date while you’re watching “America’s Got Talent”.

If you’re posting your work online, it’s a simple enough matter (although again, not a requirement) to slap a copyright date on in Photoshop and also throw some ID in the file’s meta - if you’re so inclined. (I trust that those of you with your shorts in a twist over the potential copyright infringement of your work are all running legit copies of Photoshop, right? Of course you are!)

MISCONCEPTION #4: “This is all just a corporate power grab.”

Sorry, but it isn’t. The Orphan Works legislation currently before Congress - imperfect as it is, but better than it was - has been introduced to address the very real concerns of curators, archivists, librarians, publishers, writers and documentarians who avoid using abandoned archival works for fear of potential legal action. In our extremely litigious society, such fears are regrettably not unfounded - to the diminishment of the free exchange of ideas and the public good.

Will some corporate interests attempt to influence and take advantage of new copyright law? Absolutely - just as they do with existing laws. That is the nature of corporate interests. All the more reason for artists to engage in reasonable debate and thoughtful participation, rather than indulge in irrational fear-mongering.

In closing, I’d like to leave you with thoughts from two esteemed individuals in our industry: Steve Worth, Director and Archivist at ASIFA Hollywood, and Michel Gagne, noted artist and animator.

The insightful Steve Worth:

Keep in mind what we’re talking about when we discuss “orphan works”. The images you post on your webpage under your domain with your name on the page and perhaps even on the image itself along with a copyright notice will never be considered “orphaned”… not as long as a person who wants to license the image from you can contact you to negotiate terms. “Orphan works” by definition have no reachable owner to discuss licensing with. The creator is dead. The publisher is no longer in business. There is no transfer of title on record. The work is basically abandoned.

The difference between this orphan works legislation and fair use is that the orphan works legislation establishes a method for licensing material that appears to be without a legal owner- fair use requires no permission or license at all.

And the enlightened Michel Gagne:

Personally, I’d put a cap of, say, 50 years on copyrights, then a work would enter public domain. That’s it. This way, work could be archived easily without interference. Work could be repackaged by entrepreneurial archivists and be rediscovered by new generations.

Artists are here to enhance our world and their work should be given to humanity after a certain amount of years. And that’s coming from someone who has close to 30 IPs copyrighted.

Peace and love, my friends.

Amen to that!

Kevin Geiger

Tags: artists rights, ASIFA, copyright, independent filmmaking, intellectual property, Michel Gagne, orphan works, Steve Worth

This entry was posted on Tuesday, September 30th, 2008 at 11:25 pm and is filed under Editorials. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.