Your Copyright may be "orphaned" - act now

[df cardwell]

Again, the REAL issue is when the artist is alive. Currently, with all the contracts and copyrights, we ( working photographers ) are vulnerable to the clients who signed the contracts ! Every few years, with increasing frequency due to the internet, another step is taken to eviscerate the copyright protection in the US. This is just another step.

What is going on is simple: by numbing the public to the notion of copyright's vitality, and importance, even a simple defense beomes harder. It becomes more difficult to prove the value of an image to a judge, and jury, regardless of the Copyright Act as amended.

Let's say .... Joe Photographer is commissioned to shoot a new car on a mountainside out west. Let's pretend it will be shot on film, another fantasy, but let's go on. Joe gets the job for several thousand dollars which will break even for the job. Joe figures it ges his expenses paid to be in a picturesque spot, and he signs all the contracts, carefully stipulating he retains all rights to the image.

He shoots the job, and shoots the scenics that will be the profit for this trip.

Not only does the client go on to use the image beyond the terms of the contract,
they clain copyright ownership of his scenics, arguing some cock and bull work-for-hire nonsense.

Twenty years ago, Joe would have had them turning on a spit over hot coals but TODAY, faced with the corporate legal muscle of the opposition, and the awareness that public perception that a photographer's work is HIS has changed, what does Joe do ?

Painting the photographer has the enemy of the people is logic serving the most perverse premise. Yet, that is how things have gone. This is just one more step to Copyright Law, in effect, protecting those able to steal the property of those who created it.

 

[RAP]

This reminds me of a ruling, case in Europe regarding the auctioning off of master artists the likes of Picasso, Van Gogh, etc and the millions of dollars that pass hands every time one of these works is auctioned off, and what percentage actually goes to the heirs of the artist and how long after the death of the artist are the heirs entitle to royalties. I do not know exactly what the laws or rulings are, but just think of the potential amounts of money involved and who stands to gain and loose. Essentially, people buy art primarily for an investment, to make money. Why then should not the heirs of the artist profit?

This case is also similar in intent and the attitude of greed, oppression and corruption that the eminent domain ruling has on private property. Essentially, a work produced is essentially the private property of the artist and the heirs of the artist. So then anyone can claim squatters rights on any piece of art, intellectual property?

What does that say then about the pirating of intellectual property over in the Middle East and Asia? Would this ruling then allow them to claim rights to what they just happen to find where ever they can find it?

What then happens to those who make their living from creating and selling works? What is to keep potential buyers from scouring sources for unclaimed works instead of paying fees and royalties to those puting food on the tables for their families?

If you happen to come across the book "Atlas Shrugged" by Ann Rand, read it. Maybe all the artists of the world should go on strike!

 

[John Bartley]

I liken the expiration of copyright at "death of artist" or after a "period of time" to theft of an asset.

If a person who is NOT an artist works and saves and passes along wealth in the more traditional forms of property and cash to their heirs, nobody comes along and says after "X" years that that they have to share that inheritance with the public, even if that wealth has been shares in a publicly traded company.

So, why should a photographer or artist not be able to leave their assets, this time in the form of "ownership of images created by the artist" to their families?

Assets are assets are assets and they should be owned and protected for their owners equally, regardless of the type of asset.

 

[eheldreth]

I think an interesting way to view the public domain issue is through the eyes of the disney corporation. Old Walt created his first cartoon called steamboat Willie which was a rip off of Buster Keaton's Steamboat Bill. There next theft of copyright was from a group of stories by the Brothers Grimm. Disney made his company by taking things which where public domain and creating something more from them. Now in 2006 decades after Walts death his creations are unavailable to today's youth who are trying to do exactly what he did almost a century ago. That is the problem with "eternal copyrights" they remove a source of inspiration and material from aspiring young artist who may have been the next Walt Disney if the Disney corporation had not sued them into oblivion. I have issues with the current life +(what 50 or 75) but I am willing to accept artist want there family to benefit from their work. I think 75 years is long enough though. At some point the copyright stops encouraging creativity and starts inhibiting it. Another good example of this is the current musical art of "Mixing" that is gaining ground. People take pieces of two, three, or more songs and create something uniuque and interesting by mixing them together. Why should thier art be inhibited by a dead man's copyright.

 

[Early Riser]

I think an interesting way to view the public domain issue is through the eyes of the disney corporation. Old Walt created his first cartoon called steamboat Willie which was a rip off of Buster Keaton's Steamboat Bill. There next theft of copyright was from a group of stories by the Brothers Grimm. Disney made his company by taking things which where public domain and creating something more from them. Now in 2006 decades after Walts death his creations are unavailable to today's youth who are trying to do exactly what he did almost a century ago. That is the problem with "eternal copyrights" they remove a source of inspiration and material from aspiring young artist who may have been the next Walt Disney if the Disney corporation had not sued them into oblivion. I have issues with the current life +(what 50 or 75) but I am willing to accept artist want there family to benefit from their work. I think 75 years is long enough though. At some point the copyright stops encouraging creativity and starts inhibiting it. Another good example of this is the current musical art of "Mixing" that is gaining ground. People take pieces of two, three, or more songs and create something uniuque and interesting by mixing them together. Why should thier art be inhibited by a dead man's copyright.

If Walt Disney hadn't stolen the idea from Buster Keaton, or hadn't been allowed to steal an already existing idea, he would have been forced to create a new and more innovative character. In that case we'd have both Keaton's "Steamboat Bill" and something completely new from Disney. Instead Keaton's original idea was buried by Disney's superior marketing skills and all we got was a rehash of someone else's work and Keaton got screwed. So if anything the ability to steal someone else's intellectual property does not necessarily advance society.

If artists, musicians, film makers, writers, software developers, etc. are not guaranteed that they will be able to profit, or have a chance to profit from their creations you are going to put a real damper on those who have chosen to devote themselves full time to those pursuits. People who create inteelctual property full time need to be able to pay their bills just like anyone else.

I derive my income from the sales of my original prints, and from the licensing of reproductions of my work. If my copyrights expire when I do, how does my wife continue to have an income from the licensing of my images? If I owned a convenience store that I worked with my wife, upon my death she'd still have a functional business ( although all the joy from her life would go with me ) to be able to support herself with. Whereas if they were to change the copyright laws to expire upon my death, even if my wife were as much a contributor and partner in my business she'd be left with nothing.

I think that the people who comment about changing the copyright laws so that copyright dies with the artist have never made their living as an artist. They seem to have no idea that someone's art can actually have significant financial value.

 

[John Bartley]

..... Why should thier art be inhibited by a dead man's copyright.

True enough, and something which has been "abandoned" should be put into the public domain, but protecting the work of individuals where they have elected to leave their works as part of their estate (the same as if I left you shares of Google in my will) is also important. As I said before, the art that was created was one persons asset.

If a person wants to use someone elses work, and that work has not been given up or abandoned by the creator of said work or their heirs, then why should it be considered to be public property and why should the desirous user not be required to pay for the use?

I can see where using something which is essentially "abandoned" should be ok, but instead of putting the onus on the previous owner to prove it's theirs, why can't the onus be put on the "acquirer" or "new user" to follow a legal process which indicates that a copyright has been abandoned - similar to declaring a person dead when they cannot otherwise be proven to be dead?

This is a slippery slope to be on the edge of ..... maybe things like oil wells, where someone got there first and claimed them should also have a definite copyright life and after "suitable profit" has been taken or made by the original finder, then they should be nationalised for public benefit ????

Oil - paintings - photographs ..... any difference ????

 

[cao]

Oil - paintings - photographs ..... any difference ????

There's quite a substantial difference. Check out the distinction between rivalrous and nonrivalrous property. The second is a legal fiction to induce publication by granting to the creator or his assigns a temporary monopoly over use (patent) or duplication (copyright). If you mean a photograph as a tangible object, I'd agree that just because I die shouldn't mean that the physical contents of my portfolio should be given away, but for nonrivalrous property, our framers struck a balance between the individual creator and the public interest. You might want to look at some of Lawrence Lessig's writing on this matter. Unless we truly want the instruments of public discourse to be owned by Time-Warner, Disney, and Microsoft, a little more nuanced notion of intellectual property might be in order. The alternative tends towards fascism.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

 

[eheldreth]

If I owned a convenience store that I worked with my wife, upon my death she'd still have a functional business ( although all the joy from her life would go with me ) to be able to support herself with. Whereas if they were to change the copyright laws to expire upon my death, even if my wife were as much a contributor and partner in my business she'd be left with nothing.

I think that the people who comment about changing the copyright laws so that copyright dies with the artist have never made their living as an artist. They seem to have no idea that someone's art can actually have significant financial value.

Under current copyright law your wife would have the right to your work for atleast 50 years after your death. I said nothing about changing the current laws. My only comment was that over the last hundred years we have continualy upped the number of years a copyright is held and eventualy we will cross the threashold between artist right and public interest. As the poster after you said there is a balance. The sole purpose of copyright is to encurage creativity by protecting your invested time and money. The constitution also takes into account though, that at some point you must balance public domain with copyright. The problem with your view on the disney question is not the material disney used but his ability to launch an new genera of media. If not for Disney and his infrengment we may not have seen the rise of popular cartoons in the maner we did, in turn we may not have seen CGI in movies in the way we have. Hell we may not have even seen a continuation of the movie industrie(I know just obsurde speculation to prove a point). There is no way to know, but his contribution to media and culture far surpase where his material was obtained from or weather it was a rehash of eairlier ideas.

 

[SuzanneR]

Bumping this very old thread, as there seems to have been some news on this bill. I'm not clear on all the legalese, and maybe some of the legal types here can comment, but it seems that at this time PPA and ASMP are supporting this bill. APA is not.

here is a link if you oppose it...

http://capwiz.com/illustratorspartnership/home/

I would appreciate any further thoughts or comments on this bill... it just seems the baby is being thrown out with the bath water, but I could be wrong.

 

[df cardwell]

READ THIS:

http://www.asmp.org/news/spec2008/orphan_update.php

 

[haris]

I just thinking what would be with photography at all if copyright laws as we have them were on photographic processes and techniques. Thank to Whomever/Whatever for French government for buying rights from Niepce and Daguerre and to give them to public. Imagine if heirs of Niepce and Daguerre still have copyright on photographic processes like developing light sensitive materials and fixing image which was created with that development...

While copyright is great when you earn money, it is danger to, let say "public interest"

But, hey, everything is about money and when big image agencies or music/movies companies want to earn even more, well...

 

[df cardwell]

Photographers, like writers, musicians and other 'creative' professions
do not SELL their work for COMMERCIAL use,
they license it.

The axiom is that one is entitled to earn a living.

Let's say I hire you to make a portrait of me.
Let's say you make a lovely picture, and a beautiful print.

It is SO good, as a matter of fact, I walk down to the Advertising Agency
and negotiate a deal for them to use it in a worldwide campaign.

I get all the money. It's my face,
and I paid for the print.

I can do that, right ?

 

[haris]

Simple, if Advertizing Agency wants photograph, they can't use any existing photograph, they must hire photographer, model and others and to make specific photograph for that campaign. If things are defined like that in laws, then more jobs for photographers, models and others

So, for example photograph can be used commercially only once and for that specific purpose (you hired me to make portrait of you, you paid and you have that portrait, that is one commercial use), and all other uses can be for educational, promotional (for photographer - exhibitions and books, and for model on photograph - let say fashion models books), and that would be that.

Something like that. Just one idea...

 

[JOSarff]

When I'm dead, who cares. All my stuff goes to charity. But I have a few thoughts about the 'orphaned copyright' issue.

I generate a small income from print sales, and I want that work copyright protected, while I'm alive. I don't want to open Time, Outdoor or National Geographic and see one of my photographs and not have been paid for it. I'm living in what I refer to as a "toes up" house. They'll carry me out toes up when I die. So I'm having my studio stamp revised to include my address.

If you want you can find preple. Yellowpages.com lists 44 J Sarff's, including my old address. If you google my name you find entries about my artwork and shows. However, J. Sarff pulls up Dr. John Sarff, a researcher in plasma fusion at UW-Madison and a prolific writer (no relation).

My point is with a little effort, you can be found.

 

[gr82bart]

I would appreciate any further thoughts or comments on this bill.

I think the objection to the bill is the clause(s) that say, in layman's words, "if I l like and image that I want to use commercially, but I can't find the artist, then I can use the image any way I want." Kind of like a rights grab.

I'm not sure what the standard is in "I can't find the artist" which is what I think people are up in arms about.

Take a site like flickr, which has millions if not billions of images. How many of those accounts are still active with the artists' information current? How many of those images have the meta-data tags /EXIF fields 'filled in' to show copyright ownership? I would bet most do not. For a company like flickr, this is a bonanza in 'free' images that they could use or market to companies 'royalty free' should they want to.

Then again, this could all be over-reaction and conspiracy theory too!

Regards, Art.

 

[df cardwell]

And of course it is a conspiracy. But when Corporations do it, it is called BUSINESS ~!

 

[Kino]

No, it actually began as a sincere attempt to give archives a means to legally copy and preserve orphaned works of art that are important and of which, the owner cannot be located.

Having worked at the Library Congress Motion Picture Preservation Lab for 13 years, I know a thing or two about it, as the LOC has been a driving force behind getting this legislation on the docket.

How'd you like to spend a $100K preserving an orphaned film, only to have some relative pop-up 20 years later and sue you for your efforts?

A LOT of this footage is actuality footage of historical persons and events -- should we allow it to rot because there is no one to give permission to copy it?

However, that's not to say that even the best intentioned laws cannot be twisted around by disingenuous or dishonest people and used at cross purposes to their original intent.

However, everyone seems to be acting as if the Copyright Office is now somehow acting as a policing agency and that this new legislation will somehow rob them of this power when nothing could be further from the truth.


Who is naive enough to think they actively search out copyright infringement and enforce your rights?

The burden of proof of infringement STILL lays on the copyright holder and, regardless if you actively register for copyright or not, YOU have to enforce your own rights to your intellectual property.

This law would not change a thing in that aspect, but it might embolden some with more resources than scruples to attempt to beat-down the system.

I don't know...

Hard call...

 

[gr82bart]

This law would not change a thing in that aspect, but it might embolden some with more resources than scruples to attempt to beat-down the system.

Here's a case that, if the bill were in place at the time, this company surely would have said "I couldn't find the artist ..." http://www.blogherald.com/2007/10/22/copyright-cases-to-watch-coton-v-tvx-films/

But, like Kino mentions, gaining settlement on the matter is difficult at best, even in a case like this where the infringement is so blatant.

Regards, Art.

 

[KD5NRH]

If you want you can find preple. Yellowpages.com lists 44 J Sarff's, including my old address.

Which could be worse than finding none; one of them might be an amateur photographer with a few dozen pics on Flickr, and too thrilled to ask questions (or haggle over the price) when someone calls asking for permission to use one of his photos.

I guess that's one advantage of using my callsign in user IDs and such; anybody familiar with callsigns will know how to get contact info for the right Joe Bramblett, rather than the prisoner in Georgia or the PhD in California.

 

[Christopher Nisperos]

Admittedly, I haven't yet read this bill. However, judging from the comments posted here, another issue would seem to be the concept of assets, and the ability of passing them on to heirs, even if only for one generation.

Logically, anything which "dies" with a person only has real value during that person's lifetime. If a photographer wants to will his copyrights to his or her family, it would seem that this new law would render
those rights a lot less valuable.

Anyone who has read the bill
have any comments on this? Are there any lawyers out there?

.

 

[df cardwell]

Please, please, please read this:

http://www.asmp.org/news/spec2008/orphan_update.php

The ASMP (American Society of Media Photographers) is the pre-eminent organisation
for professional photographers in the US, and has led in legal issues on behalf of PHOTOGRAPHERS for decades.
COPYRIGHT is a fundamental issue for Photographers, and ASMP is the first place one should look !

 

[df cardwell]

http://digitaljournalist.org/issue0806/orphan-works-.html

This is a succinct editorial from a journalism oriented site,
of real, honest-to-goodness, published pros whose life will be dreadfully
effected by this legislation. PLease, read it for yourself.

It begins,

"As readers of The Digital Journalist are well aware, we have been a staunch supporter of photographers' copyright since our first issue.

In the United States, photographers, artists and writers enjoy a degree of protection to their intellectual property that is rarely found in other countries. Essentially, copyright is automatically granted to the creators from the moment of inception. Although to be solid enough to stand up in courts, it is necessary to prove that you have registered the photograph, article, song, or other artistic work with the U.S. Copyright Office.

For freelancers or independent creators, it is this copyright that allows them and their heirs to derive income from the sale of their unique work. Since most of these independent creators rarely have secure pensions, the body of the work they have produced over their lifetimes in fact becomes their annuity."

 

[sionnac]

I guess the point I would like to make for US based photographers is that you can protect your works for extended periods of time if you register your works properly and plan your estate properly, but it will have to be treated like a business expense and is not something that will be free or cheap (unless you just happen to be a copyright lawyer who is a pro photographer) or easy.

The legislation introduced is NOT intended to displace your normal rights; those are still in place BUT they are up to you to invoke.

If want your images treated as intellectual property, then you have to treat them as such yourself and invest time, money and energy to exploit and protect their intrinsic value, otherwise why should the State run around behind you and pick up your dirty laundry?

I agree. Estate planning would be the way to go if you are concerned.

 

[df cardwell]

I believe you have completely missed the point.

Until you have defended yourself against a Copyright Grab,
you don't believe that it is possible that you have to defend your rights SO FREAKIN' HARD
to just to keep what is YOURS. Properly registered, etc., etc., etc.

If this ISN'T a problem, why are the experienced, capable, first string PROS terrified of this and fighting it so hard ?

In my OWN experience, small and inconsequential as it is, and long before the internet, I had to take on a newspaper with more resources than I, and it was a long hard battle that cost me a great deal. And I could not defend myself long enough to defend against the theft of an image, that had been duly copyrighted, and even PUBLISHED, and won awards. You only have the rights you are capable of defending, despite the Law. It is why there are organsations like ASMP that CAN help an artist defend a copyright theft.

The issue at stake is NOT that a photographer must properly copyright their work.

It is absolutely NOT that not the sick old "Welfare Queen" argument that a creative artist is looking for a free ride or special rights. It is NOT about The State picking up my dirty laundry.

It is that there is currently an artfully exploited charade which harvests images, using unbridled avarice and feigned innocence,
counting on the theft of copyright images going unnoticed
and - if discovered - defensible because the image had become orphaned.

It is about preventing Big Business, Little Business, and every two bit crook that thinks himself a groovy hipster using the Internet for the free flow of information, to steal the COPYRIGHT and defying both the artist and the LAW to find him out and take it back. It has been hard enough in the PAST, PRE-INTERNET ERA to defend yourself, meaning losing thousands and thousands and thousands of dollars, taking all your energy and time from your work, and being 'blacklisted' from further work. Today, it is next to impossible to patrol your work.

The heartbreaking thing about this discourse, at APUG, is the profound misunderstanding of both the Copyright Law, and the Orphan issue.

Post an image in the APUG Gallery. Even if you don't really care whether some Big Corporation steals your image and uses it as the basis of an advertising campaign, you could be forced to remove the image from the gallery and never allowed to show the image - even if it has been copyrighted - if the theft is excused because the image an 'orphan'.

EVEN IF you think that images shouldn't be copyrighted, and that you are happy to post pictures on FLICKR and your own website, how do you feel about somebody appropriating your image (to use the correct Post Modern term) and compelling you to remove your own image from your own page because they claim it is theirs ? Neat-O, ain't it ?

 

[jstraw]

Very well said. There have been some terribly saddening things said in this thread. It's worth remembering that "copyright" is supposed to be a noun, not a verb. The verbs are "register" and "defend." My copyright comes into being with the creation of the work...with or without registration. This is how it must be.