EDIT: There's a lot of new in here, but I think it all needs to be kept together.

Okay, so I’ve managed to track down a semi-recent version of the Orphan Works Law itself – from 2006, the last version released, from what I can tell – and waded my way through the legalese bullshit. It made my brain hurt reading the excessively convoluted wording but I think I managed to sort out what was being said. I’ve also read through the most current proposal synopsis (a bit boring, but at least it was in plain English!) and found it quite informative. I’ll post links a little further down. Here’s the short (hah!) explanation for those who don’t want to have a brain seizure from reading through it all. (Though bear in mind that this is just my interpretation of what I read.)

The primary intent of the law – to allow non-profit, educational and museum groups to utilize images even if they’re unable to find the creator – is honestly a good thing. The gist of it is this: Someone who wants to use or display an image (painting, photograph, drawing, whatever) must do a “reasonably diligent search” for the creator. The law does give some definition of what they consider “reasonable” but are trying to leave it flexible so that its definition can change as technology and culture progress. It’s still a little vague for my liking, but I can at least appreciate their reasoning.

Basically, if someone uses an “orphan” and the original artist comes forth, then the “infringer” has to show that he made an acceptable attempt to locate the artist. The artist would have to prove his ownership (makes sense, lest you get scammers pretending they’re the artist) and would then be eligible for repayment for the use (again, that word “reasonable” is used, meaning that you’d get paid whatever the courts decided the market value of the usage would have been). In the case of non-profit users, they would be protected from monetary suits but could be told to cease use of the image and would have to comply immediately.

Good news is that, from what I’ve read, they are not planning to let the commercial community have free reign to jump into the registry pool. What they are saying is that the Copyright Office is simply incapable of doing it themselves – they haven’t the technical capabilities nor the genre-specific knowledge necessary to do the job right and they also don’t have the funding to manage such an enormous undertaking.

So, how do they want to handle it? Basically, they want to leave it up to the experts in each field. If you want to know who took a photo, you go talk to photographic societies which cover that genre (historical, modern, German, weddings, whatever). Not just one, either... that wouldn’t be considered “reasonably diligent” and should they be brought to court on it, they’d get slaughtered.

What might be necessary to make your ownership easier to determined (though not required) would be to join such a guild/society/whatever which would then keep all your work on file for searching. Might have to pay annual membership fees for these, but honestly, I can accept that. Hell, a lot of people do that now in all variety of fields (Screen Actors Guild being a very prominent one). Also, just to note, you can apparently register unpublished works (of your own, naturally) as a “collection” with the Copyright Office for a single fee ([link]), so that could be another route for us small-time people.

So what really needs to be “done” about this law? For one, wait for the new version to come out. From all appearances there will be a new rendition put on the table, very probably this year, but it’s not there yet. When it comes out, read it (or an official summary). If they start talking about having commercial involvement as registries and other such (currently incorrect) insanity that was put forth in Simon’s blog that started this whirlwind, then start sending letters to your Congressman. Right now, it’s not even suggested in that format (though it’s definitely something which is highly undesirable).

Also, technically speaking, deviantArt would serve as a good place to hunt down artwork’s owners – and I owe an apology to *noraneko on that one, though as I told her, there’s plenty of pieces around her which aren’t posted by their true owners. I’ve seen plenty of pretenders and impersonators. Then again, I suppose those are possible most anywhere. It’s as good a starting place as anywhere, I suppose.

Okay... so I’m going to stop here. Want to know more? Read up with these following links and whatever else you can find. There’s definitely a lot of good which can be done with the OWL (heh, an acronym with a built-in logo design!) but they also definitely need to keep the money-grubbers out of things. The Copyright Office just needs to keep a list of good, official groups that should be searched, not hire someone to do it nor allow businesses to run the show. And that’s my two cents (er... or maybe twenty cents). Keep the change.

(Editing the edit: Almost forgot... the law's link has a lot of stuff about the music industry in it. Orphan Law starts on pg 86, with Resources on pg 96. Hopefully save you some searching... 'cause it sucked.)

The 2006 law (for the very brave): [link]
The current proposal as of 03/13/08: [link]
A current article on DA, with some good info: [link]
And another blog which helps break things down to English (and provided the “collections” pointer): [link]


I kept my previous writing in here because... hell, I said it. I've just got more info now.

~~~~OLD STUFF BELOW THIS LINE~~~~

Been reading everything I can find about the whole “Orphan Works” deal, listening to interviews with successful, professional artists and hunting down what info I could find on the law itself. The very basic concept from the original 2005 law proposal wasn't intentionally destructive towards artists' rights... however, once you get big business lobbyists involved and loopholes involved, it goes to hell fast.

Basically, they're leaving it far too wide open for companies to use virtually anyone's artwork just by claiming that they tried to a "reasonable" extent to find the original artist but couldn't, so therefore assumed it was orphan. Then the artist needs to find out about it and prove otherwise, which will no doubt involve serious legal battles.

Now, add to that the intent of requiring artists to register their copyrights with commercial registrars who will charge fees for such, and you’ve got a surefire way to break the backs of aspiring artists everywhere. Even if the fee is minimal, say five dollars, you’re still looking at some hefty prices if you want to protect all your work – ‘cause let’s face it, some of those little doodles and concept pieces could be worth some serious money someday, so long as they don’t go orphan.

Sure, you can (and should, really) put your personal copyright on your artworks (and I really should update my own fractals with such, though I hate the thought of detracting from the work itself ^_^; ) but we all know that’s not completely effective. I’m no photoshop ace but even I could manage to edit out signatures, copyrights and watermarks if I wanted to. It’s not that hard, really. Do you really think that corporations (large or small) are really so scrupulous and honest that they wouldn’t do such a thing and claim that they acquired the artwork that way? No offense, but if you do, you really need a reality check.

There is precious little good that can or will come of this as it stands. There is absolutely NO benefit in commercializing the registration process, at all. If it were entirely government run and there was only one registry to file with/search, then it might be workable without driving a spike through the heart of the artistic community, but as it stands now, this will be highly destructive and will push a lot of aspiring artists away from the field. And by “field” I don’t just mean commission artists drawing concept art for games and ads... I mean professional photographers, architects, sculptors... anyone who makes any kind of visual creation.

Think of all the artists around here who’ve had to deal with art theft and how much work they’ve had to do just to get it stopped, let alone recoup monetary losses. Now make it that much harder for them to prove that it was stolen, that they were the original artists and also that the thief knew it wasn’t public domain.

Alright, I’ve ranted enough on this for the moment and my stomach’s growling at me so I’ll leave you with just a couple last things. First is a link to an article here ^Obsidian-Fox, who explains the issue thoroughly and clearly. [link]

And lastly, a response of mine to another article in which the author was saying “don’t worry, be happy” and insisting that this law is no big deal, though she clearly hasn’t read it very thoroughly (and also doesn’t have much an understanding of how the real world works, quite frankly). And yeah, that’s just my opinion of her, so hey. Anyway, she seemed to think it was being blown out of proportion. I think she’s deluding herself. You can find the article if you want... I slapped a rejection on it.

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Hate to burst your bubble, but your view is overly optimistic. Will art theft be made legal? No, of course not, but it will be made a lot easier, and that's just one of the enormous flaws in the proposed system. You can put your little copyright symbol on your work, sign your name on it, put a watermark and whatever else but it can still be easily removed - it's done all the time, even now. What this "orphan works" law will do is make it the original artist's responsibility to prove that they really created it after someone uses it. And no, deviantart will not constitute proof, unless they become an official registry, which right now they are not.

Face it, anyone can submit pictures here and just because one person does it first doesn't mean that they're the original artist. I've seen plenty of false claims and even impersonators on here. Neither DA nor any of the other alphabet sites are any real proof of ownership. If anything, this law would obliterate such sites because the moment it's up on here, it's in the public domain. Again, unless DA becomes one of those official registries.

Add to that the necessity of paying money just to get your work registered on such sites and you're looking at killing the ability of self-employed artists to support themselves without charging that much more for their work. If your work isn't on those sites, then it can be claimed as "orphan" and used by anyone for any purpose without consent. All they need to do is say that they made a "reasonable effort" to find the owner.

Basically, this law is all about money; the money that members of the government and commercial sector can make off forcing artists to pay registration fees for their work and the money they can save by not having to pay for use of "orphans". It's little more than a government-sponsored corporate scam that will be of minimal help to anyone of the non-profit variety and a huge detriment to anyone who wants to make a living off their artwork.

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My family on DA! My lovely and entirely wonderful wife and my still-young-but-already-brilliantly-talented sister !!
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I'm a Bobling, he's a Bobling, she's a Bobling! Wouldn't you like to be a Bobling too?
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