Paul Rapp "is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop." He writes a regular column on intellectual property rights.
His most recent column addresses the "Orphan Works" copyright and potential legislation regarding it. What is an orphan work? Paul cites Meredith L. Patterson's Radio Free Meredith where she uses this example about "your parent’s wedding pictures from 1955. You want to publish them? Guess what? The copyrights are probably owned by the photographer! Who was who? And is now where? You don’t know? Uh-oh." The proposed bill, H.R.5889, the Orphan Works Act of 2008, seeks to provide "limitation[s] on remedies in cases involving orphan works."
Rapp wrote just before the actual legislation was introduced, but still got it right. "The legislation will...seek to rectify the problem of lingering, abandoned copyrights, to loosen this stranglehold of ghosts on our culture, by allowing the reuse of pre-existing materials in situations where after a reasonably diligent effort, no copyright owner has been located. If, after the work is re-published, a copyright owner shows up and says 'that’s mine', the copyright owner will be entitled to a reasonable licensing fee for the use, but won’t be able to stop the use."
If this legislation had been enacted, the case about the use of the street artist's picture for their business that one of my library colleagues wrote about last month would almost certainly have applied.
Rapp, BTW, is a/k/a Lee Harvety Blotto, drummer for the legendary Albany band, Blotto.ROG
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1. Lloyd Shugart - May 30, 2008
There are many issues with the law as proposed…mainly it just further creates hardship and litigation…….the only reason it won’t overwhelm the Fed Court system is that it will not be financially feasible to pursue protection of the copyrights, because the bill guts any damages and the attorney fees. As it stands now it will promote USE FIRST, and ONLY AK FOR PERMISSION if you get caught.
The only true way to slow the creation of Orphans issue is MANDATORY ATTRIBUTION, since our laws lack any moral rights, and Morals can’t be legislated to any effect. At least with Attribution, and google the living Artist will be able to be found. As Tammy indicates in her letter to congress the current proposal will only create further morass.
Lloyd Shugart
Unintended victim
Tammy,
full copy of Tammy’s letter here http://artsandcraftslaw.blogspot.com/
I read your letter on a Techdirt http://techdirt.com/articles/20080425/124144950.shtml#comments #12 posting, and I must say that of all of my readings on this issue. Your letter is on point of the real effects of this legislation, as it relates to creators, especially the visual artist.
I am the POSTER CHILD for why this is bad for the copyright creators.
I come from an experience that is real. I am in year 3 of a copyright litigation that, my legal bill now exceeds $500,000.00 USD.
US copyright laws currently lack “MORAL RIGHTS”…. before any “ORPHAN WORKS LAW” should be considered the copyright laws need to address at least “Mandatory Attribution” bc I don’t think that moral rights can be enforced by law.
My case involves thousands of images that were marked with my “CMI” embedded into each and every image, with metadata….client removed said data, and then licensed my images to hundreds of third parties who then licensed my images to thousands of additional third parties under their “Affiliate Marketing Programs”
So if you are an artist and are concerned with your artwork then you better be concerned with this proposed legislation, and the impacts it will have on your ability to sustain yourself.
As an aside, although I was the copyright owner, I was the defendant in this lawsuit. I was forced to incur $500,000.00 USD in legal fees to protect my copyrights. As a result I now have thousands of images being used by thousands of people whom are all using my images to make money….they have not paid one red cent for these assets…I can not pursue each and every one of them….and those that I do can claim as a defense that the work is either in public domain or an orphaned work, or that it was an innocent infringement.
How many readers have the kind of USD it take to protect your copyrights, even under the laws as they now stand? If the orphan works law passes as now proposed it will cost more to protect your rights both in real dollars and in your personal time, and emotions.
Propet USA v. Lloyd Shugart WD WA. Federal Court
Lloyd Shugart
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