Sunday, May 11, 2008

Shawn Bentley Orphan Works Act of 2008

There's an old saying-- "You know a politician is lying if his lips are moving." I try to give them a tiny bit more credit. Not much but a little....

But the hairs on the back of my neck stand up and my B.S. detectors go on high alert whenever a politician claims to be inspired to action because of a little old lady in [fill in the blank with vague out of the way location that implies humble origins....]

I'm a bit on the dorky side, so when I get emails that say 'this horrible bill is being introduced to Congress, we must stop it now....' I actually go find the bill and read it. If its a particularly amusing piece of legislature, I'll also try to find transcripts. The statements tend to be equal parts hyperbole, melodrama, and pompous posturing (even if they happen to have good intentions, I still find it amusing).

This is a particularly good one from Senator Leahy, in reference to the Shawn Bently Orphan Works act of 2008:
"In practical terms, then, what does this mean? It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so. It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendents. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer. "

Yes, please, lets talk about this in practical terms..... I would love to see the statistics on how many people have been threatened with copyright infringement for restoring personal family photos. While we're at it, how many have actually gone to trial, much less won?

Shouldn't these "concerned" Senators be working on something more important, like I don't know, something that is costing us a lot more money and actual lives... perhaps healthcare, or possibly a war? When a senator moves, its typically in response to money or an election (yes, I am being cynical but this is my soap box....). What lobbyist could possibly be interested in "Orphaned" works of art?

Whether or not the intent of the bill is to protect our "cultural heritage", the way it is written opens a massive loophole that I think is extremely harmful to artists.

Just for a moment, I'm going to put myself in the fantasyland of the authors. I'm going to pretend that this really is about that poor scared lady in Vermont who is afraid to fix grandma's torn wedding photo. I'm also going to suspend disbelief and pretend that a database of every piece of artwork by every artist in the United States is not only feasible but is easily searchable with keywords. I have a photo of my grandparents that was taken on their wedding day in 1930. I'm really worried that if I scan it and photoshop the tear out, the photographer will find out, be angry, and sue me. I think Ill use this handy government database to find the photographer and ask if it is ok to fix his damaged work of art. Hmmmmm... what keywords shall I use? "Grandma's wedding photo" oops, I got over 6,000,000,000,000 hits for that, maybe I should narrow it down. How about "White satin dress, black tuxedo, man standing, woman seated, wedding, 1930 " This should be easy, how many photos could possibly fit that description?

The reality: This opens a giant loophole. With this bill, it would now be legal to find a piece of artwork/logo/photo/whatever and use it for a book cover/t-shirt/movie prop/ coffee mug/whatever. All they have to do is "try" to find the artist when they presumably dont know the title of the work or the author. "can, red, white, label" Darn, didn't find it.... let me try this database.... don't see it! Guess that means its mine!! Andy Warhol's soup cans? Never heard of it.

A private enterprise will more than likely be enlisted to create the databases. Obviously they will charge for its use. Do they charge the artist or the user? Nothing personal, but now this is a business. The artist is a built in customer base with no choice in the matter if they want to protect their property. The artist will continue to create and thereby bring in more revenue. Let's say its $10/image. I'm a relatively young artist at the beginning of my career. Even so, I have a couple thousand paintings and drawings. Lets say I have 2,000. Thats about $20k. For a person to prove they have performed due diligence in finding an artist, they need to search two databases. The cost to protect my work just doubled (unless the government approves more than 2 databases....then it goes up). But hey, its worth it right? This will prevent someone from stealing my work (wave the magic wand that makes me forget that my work was already protected by law for free, without registering and with much stronger penalties for infringement).

By the way, who is Shawn Bentley anyway? Shawn Bentley worked with Senators Hatch and Leahy to author this bill. Sadly, Shawn Bentley passed away so they named the bill after him.

Very sad. So is it rude to ask? Seriously... who is this guy? He was a lobbyist for Time Warner.

If the authors were really concerned about protecting family photos and ensuring that museums and non-profits were able to "preserve our cultural heritage", I would think there would be more written in the bill specifically mentioning these issues.

Instead there is a lot written that insures that the onus is shifted from the copyright infringer to the copyright owner. It also takes away an artists right to define how their work is used after the infringer tries to find the artist.

Instead they provide a laughable definition of "Reasonable Compensation"
(4) REASONABLE COMPENSATION- The term `reasonable compensation' means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

A willing seller? What if I never would have sold my work to be used in that manner? There must be something in there to protect the creators of the original work right? Something to protect the integrity of the art?

Um... no actually:

        `(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney's fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

For added smoke and mirrors, there is a second, nearly identical bill as well. One is going to Congress, the other to the Senate. The devil is in the details, my friends....

The Bills:
Shawn Bentley Orphan Works Act of 2008
Orphan Works Act of 2008

Want to say something about it?
write your senator and congressman, if you don't know who they are, you can look it up here:

Or there are some online petitions, here is one:
Illustrators Partnership

More info in case my rant wasn't enough already...
Articles/ Blogs:
Animation World magazine

David Rhodes commencement speech.
Leahy is "disappointed" :o(


Association of Research Libraries reports bill is stalled


Pseudonym said...

It might help to know the history behind the proposed legislation.

Brad said...

there is no law, no rule, that man can not manipulate, dodge, or blatently ignore. we dont need more laws, or greater penalties. we need more character. people are lost but looking for someone else to fix things. it starts with every individual.

Julian said...

I really think this is a good idea, before 1976 copyright wasn't an automatically given thing, if you wanted protection from the government of your work you had to summit it to the library of congress and get very limited term of 14 years with the option to renew once. Today your automatically given copyright of a work that lasts the life of the author plus 70 years. So it used to be that all works could be shared and modified freely only 28 years after it had been published however, today the only things the public domain are deadlocked to authors that had died before 1938 thanks to the copyright act of 1976 and the copyright term extension acts congress has been passing over the years.

I think it is absurd to have copyright last that long, I mean how much of an incentive do you need to create after you are dead? There are plenty of orphaned works out there that people care about but can't do anything to save them. Granted that the example given by the copyright office of restoring a old photo isn't the best, however I think the greater benefit is that there are a hell of a lot of old films, books, magazines etc. that not many people care about that can be restored, digitalized and shared. Most of the time the person who owns the copyright to a older work dose not even know they own it in the first place, because they had bought smaller companies that owned copyrights then sold parts of this and that to other people and then they sold that to make who owns copyrights to things into a whole big fucking mess of no one knowing who owns what.

I think that the idea that this law is only going to be used to legally steal people's copyrights is otter bullshit. If your still alive there is no way the copyright office will give this an orphan work seal. Once more copyright wasn't automatically given before 1976 and it seems to me that artists did just fine registering and keeping track of their works on their own before that. Even if you are paranoid there are other things out there like creative commons that allow you with no fee to license your work in a way you see fit (as someone who is actively photographing things, drawing and writing stuff; this is the route I go and it has led to very cool things that I will not go into detail to.)

We are living in the age of information, why the hell are we restricting the spread of it? In the realm of books that fall under copyright most of them are out of print. This means artists aren't making money when a copy is sold (copies are only sold at used book stores), publishers aren't making money when a copy is sold (again copies are only sold at used book stores), so why don't we let people who still care about the work declare it as an orphan that way they can easily redistribute it. The wold is made better because there is more information freely available. The author isn't harmed because he or she wasn't making money on the work it the first place nor is the publisher harmed because again they weren't making available copies in the first place everyone benefits by more works being available and no one loses anything because they weren't gaining anything in the first place.

I was in full support of something called the Eldred act that the basic idea was if you cared about a work that you had the copyright for, you needed to send in a refundable dollar to continue to have the claim over that work. The brilliance in this is that there would once again be a database of the works that are copyrighted (just as there was before 1976 when you still had to claim copyright to the copyright office and send a copy of your work to the library of Congress) the things that were indeed orphaned can move into the public domain and everyone knew who owned what and who they would have to contact if they wanted to use a work in something so they can be rightly paid. Saidly, the bill was killed because the copyright maximalists thought they should not have to pay (which is not the case because the dollar for each work would be given back to them) anything to protect their works and that their copyrights were a right that should be automatically granted. The thing is the framers of the Constitution called what we call copyright today as a creators monopoly and that it should be granted when the owner of the work took the steps for it to be granted and it should only for a limited time. That way no one stops creativity from continuing because one entity can't assert the rights over everything, and that there was an incentive that the persons making works were protected for a time that it mattered and then they would have to create something new to continue being profitable over their works.

I know I've been ranting along for a while, and it may seem like a unimportant thing but it really one of the most valuable things to our society and culture if you look what is at stake here. Every new work out there takes parts of the past and reworks them to make something new, if no one can draw upon the past then nothing new will ever be made.

There are plenty of examples of people stopping other people from making works because it may or may not infringe on their copyright and if we are to continue this wonderful idea that is nearly everywhere on the Internet of taking parts of other people's works modifying it and sharing it again to show the rest of the world. We need something like this for two reasons, to expand the scope of knowledge out there to freely modify, and also to stop others who want to stop us from expressing ourselves the way we should be able to.

I really hope this makes sense and this bill is not stopped because of a small minority's fear that they are going to have their work stolen. There will be really great benefits and I can't tell you what they will be because right now they are only in the minds of the people who are creative.

Pseudonym said...

Julian, you should read the link I posted above.

Orphan works legislation is needed, absolutely. However, THIS proposed law is bad.

Antrese said...

No need to apologize for “ranting”. I do it all the time (fair warning I'm about to launch into one now....) I appreciate the fact that you are passionate about your beliefs and care enough to voice your opinion. If more people were paying attention and contributing their opinion, we’d have fewer messes in the world, or at least fewer misunderstandings.

I agree that the current copyright law needs to make room for advancements in technology, but these bills do not do that. We have ways to instantly connect and share information on a mass scale that was inconceivable in 1976. This may explain why “artists did just fine registering and keeping track of their works on their own before that.” It has less to do with the law than it has to do with technological advancements and changes in society.

U.S. Copyright laws protect the expression of ideas, not the ideas themselves. This is not about establishing a “creative monopoly”. You (here I’m talking about the collective “you”) are free to take a new and radical approach: create your own artwork, write your own story, make your own music. Express your own vision.

In 2003, the Supreme Court upheld Congress’s decision to extend copyright protection for an additional 20 years. The extension came about in large part because of lobbying by the Walt Disney Company. Many of Disney’s core characters (Mickey, Minnie, Donald etc.) were approaching their 70th birthdays. All those characters were about to become public domain. Clearly, Disney had a vested interest in retaining the rights to their intellectual property, including the right to determine when and how their characters are used. Warner Brothers and many other studios supported this extension in order to protect their work. These companies actively use their characters and, in my opinion, should be able to maintain exclusive rights to them.

This leads to two other subjects: Lobbyists and legitimately orphaned works.

On Lobbyists: Because lobbyists have money, and money helps Congressmen get re-elected, lobbyists have an excessive amount of influence on U.S. legislation. Knowing who the lobbyists are can explain a lot of the language and the priorities in a given piece of legislation-- follow the money. This is how a group representing less than 2% of the work copyrighted between 1923 and 1942 were able to convince Congress to extend copyright protection an additional 20 years. This is also what leads me to believe that these acts and the Shawn Bentley Act in particular are not at all what they appear to be. Some of those same companies seem to want to have their cake and eat it too.

On Orphaned Works: There is a legitimate issue with orphaned works in that it can be extremely difficult, often impossible to track down an artist when there are no clues other than the piece of artwork. The Shawn Bentley bill does nothing to solve that problem. What it does is make it easy for corporations or individuals to steal the rights to an artists work and then claim the artist was too difficult to find.

I‘d argue that works are legitimately orphaned when the creator or copyright holder is deceased and their beneficiary has specifically stated that they have no interest or desire to retain copyright ownership; or in the case of a business, that business has been completely dissolved. That to me is a rational definition of a truly orphaned work.

I completely disagree with the idea that because a person does not know they own a copyright they lose their rights to it. As a society, we have agreed, “ignorance of the law excuses no one”. This may be a big jump in thought, but not knowing what your rights are does not invalidate those rights. This is not an example of a legitimately orphaned work. This is an example of someone trying to take advantage of another person who does not know their rights.

A person is not entitled to someone else’s property because they don’t like the way the owner is using it or because they think the owner should be doing something else with it. If I have a perfectly restored classic car and I choose not to drive it, does that give someone else the right to take it?

This brings me to Brad’s point (yes, we do need more people with character) and the idea that artists who oppose this are “paranoid”. Hate to burst the bubble of naiveté but there really are people out there who want money and don’t feel they should have to work for it. I blogged about a recent example is here: Plagiarism and Copyright Infringement. There are many many more examples, I’m sure if you looked into it you can find many of your own. This bill opens the door wide open and hangs a welcome sign for people without character or morals to take advantage of the loopholes.

Anonymous said...

The history listed in the first comment is the history of Lessig's idea, not the actual bills being discussed. The history of these bills and some of who Shawn Bentley was are at

Pseudonym said...

Anonymous, do watch Lessig's presentation through to the end. He explains why laws of this type impose an unnecessary burden on authors, and outlines a better proposal.

julian said...

Antrese, I do think it is important for works should be put under an orphan license if the owner of the copyright doesn't know that they own it. Which is to say they didn't re-register it when the work was transfered meaning they don't care about it in the first place. If they don't care that much to even know that it is their's in the first place they are not going to put it into print again and it's just going to be frozen and left in an archive and can't be used. However if this bill dose go through and they do indeed care about a work that has been orphaned then they can receive payment from whoever used that work and I think the reason the "reasonable compensation" is left so vague is because it is going to matter for each work what that compensation should be, I don't think they should be fined more than they would have paid had they been able to find the author.

I do understand Lessig's proposial and I like it better than this bill but I am more inclined to agree with Gigi Sohn with her responce to his co-op here

I also don't have the fear that the big media companies are going to use this to steal works because I'm sure the EFF and Public Knowledge would have spoken out about this bill rather than embracing it.
(There is also a short 17min discussion of the bill linked on that page and I think it worth listening to)

I don't think the Bill is perfect, but to throw it all away isn't the answer.

Antrese said...

I'd be very careful about basing an opinion on what an organization or another person thinks. That's a pretty big assumption to make.

Passing a bill that is so blatantly skewed towards exploiting many industries is definitely not the answer. Why shouldn't we expect our congressmen and lawmakers to protect our interests? Last time I checked it was their job.