Orphan Works Legislation

This is taken directly from my journal at 12monthsOFwinter.

I've thought a lot about the proposed/pending Orphan Works legislation and am in the middle of writing an editorial about it. I'm torn on what I see as ominous implications and at the same time an expansion of artistic freedom when this comes to pass. And it will come to pass- because thats the American way.

Sorry, theres no way around it- America is well known as a capable bully within its own borders as well as overseas. I do not say this as a criticism of American's themselves- simply pointing out that the systems that are regularly employed to gain an advantageous position in technology, entertainment, and financial gains, inevitably move swiftly to push out or aside the little guys.

You see this very clearly with the development of software and bio-technology for example, or the exporting of licensed television and video products, and of course the IRS! It's very fortunate that the protection of artistic and literary works were internationally formalized via the Bern Convention which essentially forced the U.S.A. to get in line with the rest of the world on this matter. Nowadays it's how well and how swiftly people react and/or adapt to new rules which will determine if we can be happy with them or not.

Visual break here!


Bigger View

The finished editorial:

Regarding the Orphan Works Legislation

There is a lot of information out there about this subject. Essentially that information seeks to analyze the ramifications of proposed legislation that would allow people to use 'orphan works' ( a definition from online: 'An orphan work is a copyrighted work where it is difficult or impossible to contact the copyright holder.' It is important to note the use of the words copyrighted work.)

To my mind there is only one way of looking at this issue: The pending/proposed legislation will come to pass sooner or later- I suspect it will come to pass sooner for reasons that are apparent if a person does a little research on corporate giants. The next step we, as artists, (and non artists for that matter) will have to do, is decide how we can prevent our works from ever becoming 'orphaned'.

This isn't the old days anymore. We live in a world where reality has become abstracted- seriously so- and how can you keep your name attached to an abstraction? This observation is directly aimed at artists who work in digital media of all kinds. It is also aimed at real world artists: painters, film makers, photographers, musicians and writers to name a few who make use of modern technology to digitize their works.

This issue did not just come up because of the current crop of artists. There are people who have access to previously unpublished material that has been languishing away in dusty old boxes or archives in the form of photos, films, tapes etc., and the only impediment to the use of these materials is the inability to identify their copyright and/or origins. Should this material not be used because someone is ignorant, uncaring or dead? Film and photos don't last forever- media deteriorates over time and no one is going to take any steps to preserve potentially valuable works without some kind of financial benefit. While some people may cry that corporations will gain legal access to an artist's copyrighted materials they are missing the point: Orphan legislation will 'benefit' the little guys as well the big guys so long as orphaned material is credited as such. If McDonald's can use a previously unknown bit of video for their next advertising campaign then so can YOU. What we should have however, is a database of orphaned works- preferably one with graphic representation of the materials although I doubt anyone will commit to that endeavor.

Don't get me wrong: I'm an avid promoter of protecting one's copyright but I'm realistic about the extent to which it can be done. And listening to the screaming voices over the years from people who have never even grasped the concept of placing their mark on an artistic creation has got me fed up to no end. It has become such an appalling realization to see that lack of understanding expressed on the internet with increasingly more works being posted with not even a signature on the work. I'm talking about photos and paintings mostly but I'm pretty sure that with media like animation, film and sound recordings many people aren't taking advantage of what copyrighting devices do exist. (Fortunately for writers web based copyright infringements or thefts are relatively easy to track given that the internet is easily text- search able.)

Copyscape can be a fun way to look for blog theft!

The end result of this ignorance and to some degree arrogance is the growing amount of orphan works; creations that cannot be identified and have no referring material to go along with it. A lot of the protective measures available to people are not utilized; for instance, watermarking images has been common for some time now but not enough people use this most effective device. Photographs and other graphics in .jpg format have IPTC data fields which can be filled out which hardly ANYBODY is doing. I'm aware that this information can be edited out but it requires knowledge and skill that the average user may not have or be prepared to invest in. Posting imagery at ridiculously large sizes simply because a person can is another foolish thing.

Good explanation of IPTC data
Techy info on IPTC

The same goes for other media which I'm certain has similar equivalents in terms of protective devices. And not only is it a matter of attaching your name to a work to protect it, it is a matter of referencing that you did so. If you want to put your work on the internet it would be prudent to do so via a well known and stable web site. Or even your own. We as artists are not forced to register our works to own copyright to them but its because of this right that people have become so sloppy. People don't understand that writing about their work and making artistic statements publicly available on the internet is a form of referencing their work- which functions on some level as an aid to cataloging. The 'internet' catalogs EVERYTHING. There are many websites that do nothing but collect data on other web sites- nothing you post online is truly your own thereafter but at the same time others become aware of who you are and what you do as an artist.

The Bern Convention stipulates that there should not be any imposing of formalities to maintain copyright to one's work but that doesn't mean just throw it out there without putting your name to it! And of course it is worthwhile to register your copyrighted works if you can afford to for the additional protection that can provide. Any fool can see that even a thorough, well documented search for the creator of an 'orphaned' work may never turn up the true copyright owner when there is no clue as to where to focus the search and the extents of 'thorough' has not even been defined. Thus the simple fact of writing and posting information about your work increases the chances of it being identified should a copy ever be 'orphaned' somewhere.

How to edit IPTC data with Irfanview (freeware image viewer)


Kristine said...

This is a great explanation of this topic. I have to say I wasn't aware of the Orphan Works Legislation, so thanks for explaining it so well.

I think I need to share this with the OBS folks.

Albert A Rasch said...

Thanks for the heads up!

Albert A Rasch
The Rasch Outdoor Chronicles

Othmar Vohringer said...

Great article. I never knew about the pending Orphan Works Legislation. This article shows how important it is for all that create art and writing to properly protect their work or risk to lose their rights to it.

Jamie said...

Thanks for the post about this bill. I hope you don't mind, I linked to your post in hopes of spreading the word. Kristine shared your post with me if you were wondering how I found you.


Blessed said...


I know you are in the middle of moving... but, you have been chosen for a blog spotlight on the OBS bloggers blog. Can you send me an email so that I can ask you a few questions or just to let me know if right now is a bad time for you.


Also thanks for this article, I read it awhile back and appreciated the good points you made.