Sunday, May 4, 2008

Lots of questions , and a little bit of good news.

A lot of confusion exists about what the Orphan Legislation actually entails and I hope this will help.

The goal of the Orphan leg. is to free up large institutions
or industries like libraries , museums , filmmakers etc. to use
images they’ve collected and can’t use because of current law. They
have millions of images/film/etc. that they can’t locate owners for
but copyright has not expired and they’d like to make them available
for educational and historical purposes. There are more applications
here but I won’t go into all of them. The examples cited are pretty
consistently old film and photo’s and if you stop there it’s all just
ducky , but there are other consequences.

The searcher would input an image , search through the registries for a match , and upon failing to find one would then supply the Copyright office with a Notice of Use. This details the search methods used and the intended use etc. and is referred to as the NOU. The CO is required to keep all records of this indefinitely. Failure to provide a NOU would remove all protection offered by limited remedy. Limited remedy means that instead of being hit with $150,000 fine or some such , the infringer is required to repay profits to the legal owner in a responsible manner and immediately desist use of the item in question.

I don’t mind the goal - I mind the fix. It doesn’t qualify the costs
to little guys in any way , and it doesn’t differentiate our stuff
from the stated interest’s of education and documentaries anywhere I
can find. I‘ve looked - maybe I missed something and if so , please
give me a heads up but I don’t think I have. For the average artist , this is too much $$ and time to spend - we have jobs , families , bills to pay and gas to buy - it just isn’t feasible. For the larger institutions it’s viable - for the little guy it’s very destructive and it turns us into a feeding ground for anyone that’s hungry.

Here’s a link to ASMP with info on the House bill (there areactually two , not just one) that delineates the essentials of the bill and changes to it since inception as well as their proposal to modify it which I actually like a lot -

It doesn’t address all of the issue for us. But the change I like is that all uses would be required to be non-profit which would effectively make it absolutely no fun for somebody to steal my stuff. I think it would effectively narrow the field of interested parties , and that’s good.

I’ve read several very loving interviews in support of the legislation , I’ve read statements it never existed and doesn’t exist now (?) , but it does. It may not be intended to deliberately hurt us but it can , and the larger institutions just really don’t have our interests in mind here. They didn’t put this together for us to make copies of our old photos for the wedding or collage sheets, they did it to use their collections that currently they are unable to.

The law that is changed here is that now if you can’t gain permission of use by finding the owner or the item in question , you can’t use the image or what have you , period. It’s copyright protected. The change would be if the owner is not found by doing the “qualifying search”, you CAN use the image etc. after filing your NOU. Instead of assuming all work is owned , it assumes it’s not , essentially. That’s why the infringer is no longer culpable financially , unless they continue to use the work after the true owner discovers it and notifies them. If they do NOT file a NOU , they lose the right to claim limited remedy and we’re all back to square one. Litigation costs against infringements are no fun now , of course , but we didn’t have to jump through all the other hoops too. Now all we have to do is make it and go merrily on our way. It’s ours , we know it , the law knows it , the end. Pouf done. If one was going to sell a design there’d be more to it , or if
someone wanted to base their derivative art on our design and sell it then we should have done more and we have these things available - but on the whole many of us could stop there.


peggy gatto said...

Wow, I had no idea....I just go merrily along! I thank you for the info!!!