Orphan Works

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by Mark Dery

Copyrights mark


The subject of copyright law matters as never before, so pull up a chair.

This article appears in the December 2008 issue of Print.

About the Author—Mark Dery is a cultural critic who teaches creative nonfiction and media studies at New York University.

“This is a once-in-a-lifetime opportunity to lose everything you’ve ever done.” That’s Brad Holland, from a recent interview with business consultant Mark Simon. Holland, a legend among illustrators and co-founder of the advocacy group The Illustrators’ Partnership of America, was referring to the Orphan Works Act (OWA), a proposed revision of copyright law that the IPA—and the more than 60 other organizations that have joined its cause—believe will have a catastrophic effect on artists. On the fast track for a vote in both houses of Congress, H.R. 5889 (The Orphan Works Act of 2008) and S. 2913 (The Shawn Bentley Orphan Works Act of 2008) would open the door to “wide-scale infringements” of creators’ copyrights, according to a statement on the IPA’s website.

For most visual thinkers, the subject of copyright law is pure chloroform. Still, it matters as never before, so pull up a chair: “Orphan works” are works whose copyright status is uncertain for any number of reasons. The author may be dead and the heirs to his copyrights unknown; the author may never have registered the work with the copyright office; or the work may never have been published, in the conventional sense, but simply found—adrift on the web, say, because somebody scanned and uploaded it without any identifying information.

The historical roots of the orphan works imbroglio can be traced back to the Copyright Act of 1976. That year, U.S. lawmakers radically revised American copyright law to harmonize it with international law, which automatically granted copyright protection to a work the instant it is “fixed in any tangible medium of expression” (written or recorded). The author is not required to formally register it with a copyright office to get copyright protection.

According to Siva Vaidhyanathan, author of Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, the 1976 act “flipped us” from an environment in which most works defaulted to the public domain to one in which all were born copyrighted.

The unintended consequence has been the vexed question of orphan works. Since statutory damages for copyright infringement can run to $150,000, the person who cannot confirm the status of an orphan work by searching the registration records of the U.S. Copyright Office is well advised to assume that it is not in the public domain. The Orphan Works Act, says Vaidhyanathan, is an admittedly “cumbersome” attempt “to alleviate this problem for historians, researchers, librarians.”

If Congress passes the OWA in its current form, the penalty for unwitting copyright infringement will be greatly diminished, encouraging the use of presumably orphaned works and, the theory goes, stimulating the exchange of ideas so vital to the Information Age. Prospective users will be required to conduct a “qualifying search, in good faith” through online registries of visual works maintained by the private sector but certified by the Copyright Office. If, after a fruitless search, the user acts on the assumption that the work is in the public domain, only to be confronted by the copyright owner, the owner would be entitled to “reasonable compensation” rather than punitive damages—“reasonable” being defined as “the amount on which a willing buyer and willing seller … would have agreed with respect to the infringing use of the work immediately before the infringement began.”

For designers, the thought of scanning and registering a life’s worth of work can cause a blackout-strength migraine, not to mention a sharp pain in the wallet. “They’re going to orphan everything you have ever done unless you register the work with these so far nonexistent registries,” Holland told Simon. “I would be spending tens of thousands of dollars just to digitize my backlog—and that’s before I have to pay the registries!”

Alex Curtis, director of policy and new media at Public Knowledge, a Washington, D.C.-based public-interest advocacy group “dedicated to fortifying and defending a vibrant information commons,” concedes that the cost, in time and money, of digitizing one’s backlog is “not … insignificant” but he contends that it involves less agony than the current requirement that the registrant snail-mail a physical copy of her work to the feds.

Moreover, insists Curtis, the OWA doesn’t encourage infringement. It “requires a user to conduct a qualifying search, document her searches, and pay reasonable compensation if an owner surfaces,” he told me, in an e-mail interview. “If a user misses just one of these steps, she falls out of the orphan works ‘shelter’ and would be treated as a regular infringer.”

Holland parries Curtis’s point. “Since serial infringers will try to establish low ‘reasonable’ fees,” he says, “these fees will effectively become the legal standard for ‘reasonable compensation’ in lawsuits regarding orphan work uses.”

Furthermore, wonders Holland, what happens if you haven’t registered a particular work with an online database? “In that case, the best technology in the world won’t find it there,” he says. “So unless every picture you’ve ever done is registered, the searcher’s failure to find a match would actually orphan a work that’s still copyrighted to you.”

Swimming beneath the surface of the copyright debate is the shadow of something more profound: our cultural shift from an understanding of creativity as something indelibly individual—a notion that held sway from the Romantic 19th century through the Modernist 20th—to the post-modern sense of a more collective creativity, one that expresses itself through his-torical allusion, cultural quotation, and aesthetic appropriation. When Holland says that “creators who use orphan works are usually remix artists, who can’t create without appropriating the work of others,” he’s implying that works inspired by other works are somehow more exalted than works composed of other works.

By contrast, advocates of radically deregulated copyright such as Lawrence Lessig, the author of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, argue for what they call “remix culture.” In a 2001 article in Wired magazine, Lessig wrote, “Creation always involves building upon something else. There is no art that doesn’t reuse.” Of course, Holland points out, there’s a difference between inspiration and appropriation.

Clearly, the tangle of copyright law that constricts the public domain and criminalizes noncommercial remixing—that recut Star Wars video or music mash-up you just uploaded—needs detangling. But, just as clearly, we shouldn’t trample the rights of the individual creator in our rush to throw wide the gates of the creative commons. The right of copyright holders to determine how their works are used must be balanced with the right of fair use. The ability of the individual creator to profit from the sale of her work, free from infringement, is desperately important. But so is greater access to the orphane
d works of artists lost in time.

As written, the OWA won’t solve anything. With its impossibly vague talk of “reasonable compensation” and “diligent” searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both “goes too far, and not far enough.” Too far because the weasel phrase “reasonably diligent search” will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, “just mush.”

Too far, and not far enough. Perhaps this is what that renowned cultural critic Hannibal Lecter has in mind when he says, in Thomas Harris’s Red Dragon, “We live in a primitive time … neither savage nor wise. Half measures are the curse of it.”


On September 27th, the Senate passed the Orphan Works Act and handed it off to the House. (“Keep in mind that debate may be taking place on a companion bill in the House, rather than on this particular bill,” notes the public-interest site Govtrack.) As the Wired blog Threat Level has pointed out, it’s unlikely that the House will vote on the measure until after the election, especially given the current economic crisis. This is cold comfort for the Illustrators’ Partnership of America, which won’t rest until the OWA is well and truly dead. Brad Holland and fellow IPA board member Cynthia Turner are exhorting illustrators and photographers to urge their representatives to reject both the passed Senate bill and the proposed House version.]