Orphaned

Or Falling off the Edge of the Earth

I was going to write something whimsical about how and when the Earth was thought to be flat, but an illustrator friend reminded me of something that seemed far more important than falling off a hypothetical edge of the world, and aptly so, since it appears that the world of image-making as we know it is on the verge of a plunge into the unknown itself. As usual in such cases, it is exceedingly difficult, amidst the welter of unsorted and contradictory information, to get any clear idea of what is really planned. The panic-mongers usually don’t fully grasp the issues and their adversaries often brandish totally unrelated examples. Let me outline worst-case scenarios and paranoid musings based on what I’ve found out or not been able to find out so far. Hopefully, it will prove to be a tempest in a teacup.

In an attempt to free up access to creative works for which no copyright holder may be found, the US Congress has been working on what is known as an “orphan works” bill. It’s been around a while; originally drafted in 2005, the bill died in consultation in autumn 2007, but now it is apparently in the pipeline for presentation before Congress some time in 2008. The full text (as it stands – it may well be being amended and rewritten) is available on the internet, but as a downloadable .pdf file 130 pages long (200 if you count the appendices), it’s not exactly light reading.

Basically, an “orphan work” is one for which no owner can be found. It is intended to free public libraries, museums and such from fear of litigation if they cannot find the copyright owner of a work but wish to publish it in a catalog, for example. All very laudable, and intended to promote public acces to culture.

Now, the bare bones: and orphan work is a work that may be used if a qualifying user “first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner.”* Now, as everyone should know, the term “good faith” is pretty much meaningless from a legal point of view, but fair enough. Naturally, a “reasonably diligent (but unsuccessful) search” implies that some means of conducting one must be used, how is not yet clear. I’ve read that there will be a central registry, that there will be no central registry, that private registries will be created, etc., etc. It stands to reason that the search will be internet-based (it’s hardly going to be door-to-door), which implies that if the work is not on an internet database somewhere, then it will be orphaned.

But, the owner resurfaces. Once he or she has reasserted his right to the image (I’ve not been able to find a detailed procedure, but it must exist somewhere) then they may bring an action for “reasonable compensation” against the user. Reasonable compensation is defined as “the amount “a reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.”” All very reasonable indeed, but it does leave the owner only two choices: to accept whatever the user wishes to pay, or drop the whole thing, since “statutory damages would not apply to use of an orphan work.  (The Office agrees with copyright owners who have since suggested that an award of attorney’s fees might make sense in certain instances where an orphan work user acts in bad faith.)” If the use was one you would NOT have allowed in the first place, whatever the “reasonable compensation” offered after the fact, well, you’ll just have to put up with it, unless you can prove the user acted in “bad faith”. (This will be a wonderful job opportunity for good faith/bad faith specialists.)

The report goes on to add: “That said, we stress that statutory damages would not be off the table perpetually. If an owner were to emerge, his legal ownership of the copyright in his work is unchanged. Full remedies, including full statutory damages, would be available against new users and, indeed, against the original user making a new, subsequent use. It is a basic tenet of the proposal that subsequent uses may not be based on stale searches, thereby increasing the probability that an owner may be found.”  This implies that somehow, the procedure of reassertion would somehow be embedded in the image or associated with it for future searches, but exactly how, I’ve not been able to find out.

In order to permit diligent searches, two things are needed: a tool to search with and a place to search. Image recognition software exists, and companies like PicScout are in the front row seats. (You have to love PicScout’s demo, which is crafted to ressemble the evening news; they’ve even put in a logo of some kind in the network corner of the screen and embedded a Youtube logo. They even “demonstrate” how easy it is to remove a watermark – which would work only if you have posted a layered file. It’s quite misleading, very much on the level of those toothpaste and cosmetics ads that show people dressed in white lab coats.) Now, suppose your work is not on the net. It will not be found, therefore a diligent search will orphan it. So, it stands to reason that in order to protect it, then you must make it findable. This implies a register of some kind, which just may not be free, unlike passive copyright protection, which is guaranteed the moment you create something. Presence on a register of some kind would be necessary, even if you live in a foreign country. What exactly is implied by all this is not really clear either. (The government has ruled out the idea of a public registry, so it will necessarily be in private hands. Like the search software, it will have a cost. For which someone will be expected to pay.)

I’ve run into “creative” users of my work for a long time now. One person even purchased rights to my work from some individual I had never heard of. Another responded “all art is free for the people”. In all fairness, most apologize and stop. More recently, a prominent French magazine published a piece of mine without asking. In reply to my query, they apologized and offered to highlight my work on their web site, which would bring me to the public’s attention. Oh, wow, thank you! I thought, finally, I’ll get some traffic on my site, I should be overjoyed that this magazine is so eager to help me! I’m afraid I sent a reply couched in sarcasm (where it wasn’t drenched, saturated and positively dripping in the same), saying that I was a little weary of publications expecting me not to expect to be paid for use of my work and to just forget the whole thing. (The reply went straight over my correspondant’s head, by the way.) Keeping an eye on one’s rights is always tedious and often time-consuming. The glimpse thus far afforded of orphan works legislation is not necessarily reassuring. It provides no more tools to pursue copyright violation than already exist. And, for the rest of us, who do not live in the US, but have our work published there, this raises a number of unanswered – and slightly scary – questions.

Parallel to this is the development of the notion of “transformative works”. “Creative, transformative* or derivative works” would be exempt from copyright law. Promoters of the idea lobby for a “transformative works exemption… not restrictively drawn, for instance, ruling out transformations which “offend artistic integrity”, as this would mean that the law would be subject to the vagaries of personal opinion as to what is ‘offensive’.”  You figure out what THAT means. Perhaps this will one day be perfectly acceptable. Or this one from France. (The publishers in both cases claimed they had tried, but were unable to locate the copyright holder. They must not have looked terribly hard, since in both cases they had copies of the original books.)

I also wonder about the nature and “visibility” of an orphaned work. Is it simply quietly orphaned and published by a respectable museum or publisher who has indeed searched for but not found an owner, or is the orphaned status of a work part of publicly available data, in which case other uses may be made before the owner resurfaces. Could it even be inserted in a catalogue of copyright-free works, in which case, by the time you un-orphaned it, you might never catch all the qualifying users?
I’ve made a “diligent good-faith search” to find out, but haven’t found clear answers yet.

I admit I only just heard about all this just under half a year ago, and I’m still trying to understand fully what it’s all about, but an examination of who is promoting the idea (software developers and stock libraries) and those who are protesting (individual illustrators and illustrators’  associations), makes me think it’s worthwhile getting informed. My London agent, bless her, is getting involved, and passed on a few articles last week.

Here are a few comments from Simon Stern, who is a patron of The AOI in the UK, Director of DACS and Director of Copyright Licensing Agency:

Objections to the USA proposal
This proposal is unanimously opposed by creator organisations in US because:

• The legislation would act as a perverse incentive for users to declare works ‘orphan’. Whilst an OW is not copyright free, it is the next best thing. Even if the creator surfaces, the fee is limited to a ‘reasonable’ use fee, and it is up to the parties to agree what this is. In this situation the user is in a very strong position since:

• The cost of litigation by the creator is way beyond any possible sum recoverable. Going to court, if the creator is dissatisfied with the sum offered, is, in effect, pointless.
• It is no coincidence that all the domain names connected to the phrase ‘orphan works’ have been bought up by corporations in anticipation of this legislation. They clearly see a business opportunity.

• There are inherent problems in setting up means of identifying visual works. Whereas a string of words can be searched and found (at least in theory) by a search engine, there is no similar process for image recognition that is anywhere near ready for implementation.

• Google images itself has to rely on file names to find pictures, which is totally inadequate for many images and for searching for a particular image.

• The proposal affects not just US creators, but creators throughout the world especially (because of the common language) those in the UK.

• A problem with all ‘orphan works’ systems is that there seems to be no practical way of rescuing a work from the orphanage, even if the creator knows it is going the rounds as an orphan, at least in the case of visual images (due to the lack of imagery search technology).

If you are interested in reading some of the earlier history of the bill: The Illustrator’s Partnership of America:

…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 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.
This Would End Passive Copyright Protection: Under existing law the total creative output of any “creator” receives passive copyright protection from the moment you create it. This covers everything from the published work of professional artists to the unpublished diaries, letters and family photos of the average citizen.

But under the Orphan Works proposal, none of this material would be covered unless the creator took active steps to register and maintain coverage with a commercial registry. Failure to do so would “signal” to infringers that you have no interest in protecting the work.

The Registration Paradox:
By conceding that their proposals would make potential orphans of any unregistered works, the Copyright Office proposals would lead to a registration paradox: In order to “protect” work from exposure to infringement, creators would have to expose it on a publicly searchable registry. This would:

— Expose creative work to plagiarists and derivative abusers;
— Expose trade secrets and unused sketches to competitors;
— Expose unpublished and private correspondence to the public on the Orwellian premise that you must expose it to “protect” it.

Yet registries will not be able to monitor infringements nor enforce copyright compliance. Even after you’ve shelled out “protection money” to a commercial registry to register hundreds of thousands of works, you still won’t be protected. A registry would do nothing more than give you a piece of paper. You would still have to monitor infringements – which can occur anytime anywhere in the world; then embark on an uncertain quest to find the infringer, file a case in Federal court, then prove that the infringer has removed your name or other identifying information from your work. Meanwhile all the infringer will have to do is say there was no such information on the work when he found it and assert an orphan works defense. This will be the end result of trying to “resolve the users’ concerns” at the expense of time-tested copyright law.

Coerced registration violates the spirit and letter of international copyright law and copyright-related treaties. And because this bill would effectively eliminate the passive copyright protection afforded personal correspondence, family photos, etc. it would tear one more slender thread of privacy protection from the fabric of fundamental rights we currently take for granted.

Admittedly, much consultation has taken place and the bill has certainly been reworked since then, which is a relief. Had not illustrators made their concerns known, it might well have passed in that form. One can only hope it will end up passing with terms that do not nullify hard-won rights. However, in all fairness, right now much is speculation. When the bill appears once more, hopefully there will be ample time to read it carefully, and once duly informed, to speak out if neeed be and loudly if necessary.
I should add that my London agent is very active with a UK-based organization that stands up for illustrators’ rights.
Here is a note she sent yesterday on another issue:

Pro-Action – Pearson/Harcourt educational publishers case

Pro-Action wrote to Pearson educational publishers (formerly Harcourt) in December 2007 regarding the fact that they demand an effective assignment of copyright and all proprietary rights in artwork commissioned for their publications.
Pearson Primary managing Director, Kath Donovan, responded in February 2008 stating that she believes Pearson can only access commercial ventures across a variety of media by acquiring copyright from illustrators.
Regarding the extra rights attained by Pearson through copyright assignments, she states that ‘rights restrictions are effectively a restriction on our ability to operate’. Pro-Action questioned what is done with these rights as the fees offered by Pearson and other sectors of the educational publishing industry do not reflect the extra rights that are assigned with the Harcourt/Pearson agreements.
These additional rights generate more income for the company even in a competitive market place, but the freelance illustrators commissioned are only paid for the original usage, whilst still being required to assign all rights. The ‘rights restrictions’ would not exist if illustrators were paid for those rights.
Pro-Action have tabled a response to Pearson’s letter. To read about the Pro-Action Harcourt/Pearson case in more detail go to [url=http://www.pro-action.org.uk]http://www.pro-action.org.uk[/url]

You won’t be able to read all the literature and case material unless you are a member, but it is all intensely interesting, and illustrates a general tendancy on the part of publishers to expect more freedom to exploit portfolios of rights without rewarding the illustrator. While this is established procedure in the cinema industry, it is new to illustration.
Not quite on the same subject, providers such as Photobucket are already offering services which can easily lead to unauthorized commercialization of others’ work. (I don’t mind at all imagery being borrowed for other web sites, if a few simple rules are respected, but I’m not a fan of strangers hoping to make a little on the side off it.)
Here is a note I received from Photobucket’s copyright infringement agent following a request to remove my work from a user’s gallery:
“As you may be aware, Photobucket does not itself distribute,
store, or make available most of the content or files available through its
service.  Rather, most all such files or content are put forth by individual
users, and Photobucket has limited control over the content its users may
choose to share.  Nevertheless, Photobucket respects copyright laws and
expects its users to do the same.
Please be advised that Photobucket has removed the above-mentioned content
from its website.
Photobucket’s response as set forth herein is a good-faith attempt to
courteously comply with your request at face value.  It should not be taken as
an admission or acknowledgment, of any kind, and Photobucket expressly
reserves all rights at law or in equity.”

Now while “Photobucket does not itself distribute, store, or make available most of the content or files available”, anyone can upload your work and enable prints, the money for which is split between Photobucket and the user, not you. To their credit, the site does react quickly and remove material, but until you get the hang of it and sort out a draft letter, it does take more than just a few minutes of your time. I have just requested the removal of 92 images of mine, all print-enabled. Users are “expected” to respect copyright, but of course not expected to provide proof of the same. That is up to you, if you happen to stumble on the picture. I am pretty certain it is just some nice kid who likes the work and hasn’t disabled the print interface, but still it’s time-consuming to chase up.

The problem lies simply in the nature of tools at the disposal of the ill-informed or truly mendacious: before digital technology and the internet, obtaining, reproducing and selling work not your own was ineffecient and hardly worthwhile. Now, as scan of a printed book or a poster can allow you to market that image world-wide as a downloadable print, and it can all be done effortlessly from one’s home with practically no investment. The nature of the naughtiness is not changed, but the ease with which it can be accomplised has multiplied exponentially. Nor do I accept the attitude “Well, if it’s on the net, you’ve got to expect that.” That is the equivalent of saying theft is okay because it is easy.

On the other hand, I just received this reply from Photobucket:
For legal reasons we must have you submit the url for each one of your images
And we can only remove your images. please give us the specific links to all
of your images in copyright violation.
I stifle a groan. (I had indicated the first and the last images in the six pages of the gallery and asked for their removal along with all the images in between.) Ninety-two confounded urls to go copy and paste…
I don’t know about you, but there are times when I feel I’m very close to falling off the edge of the Earth…
*From the statement of Marybeth Peters, The Register of Copyrights before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.
United States House of Representatives, 110th Congress, 2nd Session, March 13, 2008
(This is pretty much the latest solid information available.)
REALMS OF FANTASY

The June 2008 issue of Realms of Fantasy will have an article by Karen Haber on my work. It will be on sale in the US from May 2nd.

 

REALMS OF FANTASY (REVISITED)

In preparation for a special issue of Saisons d’Alsace for the 100th anniversary of the restoration of Haut-Koenigsbourg, we made a little pilgrimage to the castle a few weeks ago. The magazine will be published in the first week of May. More next newsletter when the layout and articles are finalized.

 

Miserable weather makes for the best photos, it would have been a grand disappointment to have blue skies and boring weather. As it was, we arrived in an early April snowstorm.

 

One of the pleasant things about a private visit is that you get to pick everything up and look at it.
Doodling in the oriel, one of the three most pleasant rooms in the castle. The book is an old edition of the Hortus Delicarum; the mechanical hand is a copy of a 16th-century one.

 

If I look slighty circumspect about stepping out the door, it’s because of the 50-foot drop on the other side – a door to nowhere, halfway up the outer wall of the bastion. Admiring the plaster casts that served as models for much of the statuary. A view from the top.

And finally, speaking of views, you might enjoy this article from across the Atlantic.

All photos © Aude Boissaye & Sébastien Randé