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Thread: Orphaned Art

  1. #1
    Professional Artist Hapimeses's Avatar
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    Mar 2008
    Edinburgh, Scotland

    Post Orphaned Art

    Hey-up. Long time no post here; I've been very busy chasing deadlines. However, I was recently pointed to an online article that worried me a little, and would worry me a lot if I were an artist based in America. Check out the following link:

    Not being too savvy with American politics, I have no idea how much of a worry this is (or, indeed, if it is fake; but, given the source, it looks pretty genuine to me). However, given the tone and urgency of the article, it appears the author is certainly very worried.

    Has anyone else heard about this? The idea of it makes me a little sick.

  2. #2


    If what the writer says is true, this is outrageous and if there ever was a reason to write to your congressman, this is it. As the article says, this just looks like a wheeze to allow registries to make money out of artists (who already represent one of the poorest sectors given their talent / income ratio) and to allow large organisations to use existing art for their own purposes without having to pay for it. Shameful.

    On the other hand, I expect that there is a lot of old art out there which can't be put on the web for fear of copyright violation. There is another article about it here. It looks like this bill has been kicking around for a while.

    Also a good article here, explaining the bill.

    A rebuttal article saying that the whole Orphaned Art thing is a storm in a teacup here.

  3. #3
    Professional Artist Hapimeses's Avatar
    Join Date
    Mar 2008
    Edinburgh, Scotland


    And further rebuttals can be found at the following links:

    Click here...

    ...or here.

    So, hopefully not so bad.

  4. #4


    Give this a listen as well... Note that the original Bill was back in 2006.. but this interview is this month...

  5. #5


    I took the time to read through Section I of the Copyright Office's report on this topic, and I wrote up this analysis for another community:

    I'm about 10% through the report so far. One thing that jumps out at me is this:
    Several commenters complained of the situation where a user identifies and locates the owner and tries to contact the owner for permission, but receives no response from the owner. They suggested that works in these situations should be considered orphan works. We have concluded that such a solution is not warranted, as it touches upon some fundamental principles of copyright, namely, the right of an author or owner to say no to a particular permission request, including the right to ignore permission requests. For this reason, once an owner is located, the orphan works provision becomes inapplicable.
    That paragraph should preclude the practice of claiming that a work is orphaned simply because its creator does not respond to an email, which seems to be one of the larger objections. Of course, this isn't the bill itself that I am reading, only the Copyright Office's report. Still, I doubt the specifics of the law will drift far from the CO's original conception.

    ...for a user to qualify for the orphan works limitations on remedies: throughout the use of the work, the user must provide attribution to the author and copyright owner of the work if such attribution is possible and as is reasonably appropriate under the circumstances. The idea is that the user, in the course of using a work for which he has not received explicit permission, should make it as clear as possible to the public that the work is the product of another author, and that the copyright in the work is owned by another.
    So any attempt to claim authorship of an orphaned work nullifies the protection from a copyright owner seeking damages.
    ...a full injunction will still be available where a user simply republishes an orphan work, or posts it on the Internet without transformation of the content.
    So Google or Getty Images will still be fully liable if they try to claim a work is orphaned and provides it to their users.
    ...a savings clause that makes clear that nothing in the new section on orphan works affects rights and limitations to copyright elsewhere in the Copyright Act, which is consistent with the structural approach of placing the provision in the remedies chapter.
    Thus, a copyright holder does not lose any rights if a work is deemed to be orphaned. Simple proof of ownership still suffices to reclaim an orphaned work, as before. Of course, the burden of proof is upon the copyright holder to show that the work is truly theirs.

    That takes me through Section I of the document. The remainder appears to go into further depth on the matter, and I lack the energy to pick it apart completely. I am satisfied that the situation is not as grave as some people appear to believe.

    The CO's report is here (133 page pdf document ahead):
    Bryan Ray, visual effects artist

  6. #6


    lol i thought i've seen the last of this issue. I frequent the art site deviantart, and as i'm sure you could imagine for an art oriented website this was the center of a lot of discussions. though in actuality this is really nothing to worry about. The original article that was posted here was something that completely blew this out of proportion.

    the entire deal was that creative copyright was going to be lost, that once you created something it wouldn't officially be yours till you paid for a copyright, which that wasn't true. another thing was that based on that assumption was that big business was gonna use that in order to get "free art" for advertising and that if you discovered your work being used you couldn't sue for damages only for them to either
    A) stop using your work, and you wouldn't receive compensation for any previous usage
    or B) that you could "sue" and receive only the basic usage fee that they would of paid originally if they bought it rightfully.

    this also isn't true, the orphan works was originally proposed for non-profit and educational purposes using works that for reasons due to a unknown author the work in question couldn't become "free use" after the standard legal amount of time in which a normal work would come into free use, and if you did discover your work being used in this way you could still legally get them to simply stop using your work. also if anyone used work collected this way for profit they could be fully sued for any and all damages.

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