Why we need help with Orphan Works

According to the Chronicle of Higher Education, the House's Orphan Works bill has been approved by the subcommittee, though Congresswoman Lofgren promises to add an amendment to kill the controversial provisions for an archive of uses, which is opposed by the Library Copyright Alliance.

A new book that crossed my desk illustrates for me the orphan works problem.  Dear First Lady: Letters to the White House by Dwight Young and Margaret Johnson consists of interesting letters sent by and to First Ladies starting with Martha Washington and ending with Laura Bush.  The book, as you might suspect, is awash with orphan work copyright problems.

It is clear that the editors do understand that most of these letters are protected by copyright.  I just looked at the credits for the 39 letters that postdate 1937 (and hence are likely to be protected by copyright).  One was written by a government employee (Arthur Schlesinger - though perhaps not in an official capacity, and so not necessarily  "a work of the US government" and hence in the public domain).  8 others were written by a President or First Lady.  While the book does not state  that they have permission to use these works, it seems likely. 

Of the remaining 30 letters, 16 are used with permission and 14 are used without any formal statement of permission.  The latter includes letters that seem unlikely to be true orphans (i.e., from Elizabeth Arden, the cosmetics magnate, and Maria von Trapp, whose life inspired The Sound of Music) as well as letters whose copyright owners would be almost impossible to trace (for example, a letter written by a 9 year old girl to Lady Bird Johnson).  In some cases, the editors were able to secure permission even when it would appear to be a likely orphan (as with a letter written by an Army private to Eleanor Roosevelt in 1943).

[Aside: There are other letters that predate 1938 that are still protected by copyright, and most of them are also orphan works.  In some cases, it is known that their authors died after 1937.  In other cases, it seems likely that this is the case (for example, letters written by school children to Lou Hoover in 1929.  They probably did not die before 1938).  1937 makes for a nice cut-off, however.  We know that almost everything later than this must still be protected by copyright.]

The bottom line is the editors and the publisher (National Geographic) were willing to reproduce unpublished and hence copyrighted letters, often in full, and thus infringe on the copyright owner's rights of reproduction and first publication.  I assume that they took this calculated risk knowing that the chance of a legal action is low and the damages likely to be small.

That is an option that I, and I think most library and archives, don't have.  Copyright infringement at Cornell is a violation of several university policies, as it is at many schools.  And like many archivists and librarians, I am risk adverse: a low threat of legal action is still intimidating.  Orphan works legislation that can be implemented and that does not impose huge burdens could help overcome these obstacles.  It still remains to be seen, however, if the legislation that finally passes Congress imposes manageable requirements.

Comments

[Birgitte SB]

The main mistake photographers and illustrators are making when getting upset about this bill, is pretending that once an image is stripped of it's metadata it then orphan. This is not true. Every image comes from somewhere and you do not need metadata trace back to it's author. Where did you get the picture from? Where did they get it from? And where did they obtain it? It is not like these works fall out of the sky. Look the work done by people who actually investigate the copyright of photos and tell me that you need a watermark or file metadata to figure out the provenance.

Most of the problem with orphan works are things that have been traced back to an author that is now deceased but it is not possible to determine the current copyright owner. Tracing authorship is not that hard, tracing the path of the copyrights to a contactable owner is.

[Peter Hirtle]

Greg Smith:

Thank you for your thoughtful comments. Too much of the commentary I have seen from photographers and illustrators has been just flat-out wrong. It is clear that you have studied the bills and thought about the implications of their implementation.

To me, one of the key feature of orphan works legislation is that it does not suggest that using an orphan work is the same as making a fair use. With a fair use, no infringement has occurred, and there is no need to compensate the original copyright owner. No one gets paid.

With an orphan work, someone who wants to use that work will need to follow best practices to locate a copyright owner. I am going to assume that the standards for trying to locate the copyright owner of a clearly commercial recent work will be onerous, especially if commercial use of the image is being made. If an owner comes forward later, the infringer must pay that owner the reasonable fees that would have been required if the two parties had been able to negotiate. Nothing is stolen - the photographer gets paid. And the same technologies that may contribute to the inadvertent creation of orphan works can also make it easy to find subsequent uses of those works.

I'd be interested to know how you would solve the orphan works problem. There are millions (if not billions) of photographs out there whose copyright owners are unknown. Millions more have copyright owners that can't be located, or whose exact copyright status cannot be determined because the contracts and other documents that governed their creation are missing. One of those photographs, however, might be perfect for use in a commercial book such as "Dear First Lady" or even in a major advertising campaign. Or maybe someone just wants to take an old family photo to WalMart to get it duplicated. Must that material sit in repositories - unused - until the ridiculously long copyright terms expire? Isn't it better to say "use it - and pay the copyright owner if he or she should come forward"? How can you negotiate with someone who can't be found?

[Peter Hirtle]

Klaus, assuming that a letter contains some original expression, it would be immediately copyrighted as soon as it is fixed on paper (or saved as bits in a computer). Copyright would endure until 70 years after the death of the author or, if the work is pseudonymous or a work made for hire, until 120 years after creation. Since someone was obviously living if they wrote a letter in 1938, the earliest copyright could expire is 1 Jan. 2009 (assuming it is not a corporate work). I would assume that this is the same under Berne and in Germany.

The penalties associated with using an unregistered copyrighted work are less than if it had been registered - but it is still copyrighted.

[Klaus Graf]

Are all letters from persons copyrightable in the US?

[Greg Smith]

There may be a need for an exemption - or more practically, an expansion of Fair Use - for historical projects. But the bills presented would subject my original, expensively created photographs to pilfering, potentially, the moment I create them. These bills allow commercial entities to use alleged "orphans." They even allow my unpublished work to be pilfered, possibly subjecting me to litigation over pictures I promised would not be published.

Do and will I protect my original photographs with embedded metadata and careful records? Yes. But that does not mean they can't be spread around by any number of circumstances: a careless employee, a careless client (the norm, I fear), outright theft, natural disaster (I live in a hurricane zone), etc.

These bills go too far. They threaten my most precious personal property and put a major asterisk in any license for exclusive use - which is the key to making money in the depressed markets for photography.

This change comes at a time when more creative works are more easily obtainable, for lower licensing fees, and ownership is more easily tracked - without special databases - thanks to digital and communications advances. Methinks those who would exploit our work doth protest too much.

At the very least, the academics, historians and librarians are being used by those who would exploit our work for profit. Yes, some of the arguments of fearful historians are valid. But let's remember, they are seeking permission to use work they would likely never have even seen nor heard in the past. And in order to use this work, they don't need commercial license or rights to recently created materials - especially those the creator has never sanctioned for publishing. This bill offers that extra license and threatens my family's and my profession's future.