Copyright Left Behind
forget the Future of Mu sic Coalitionís working-musician seminar
next Wednesday at the Clarion Hotel over on Everett Road.
Iím told registration is through the roof so if you havenít
signed up do it now: futureofmusic.org.
Two weeks ago, when I raved about the brilliance of the panelists
at the seminar, I didnít have any idea that Iíd be invited
to be a panelist, too. Oops! Really, when I indulge in shameless
self-promotion I at least try to be upfront about it. See
Iíve been deluged over the last week with e-mails from worried
clients and artist friends about this horrible Orphan Works
copyright legislation before Congress thatís gonna wipe out
everybodyís copyright. And bears, oh my! The culprit is a
hysterical Web post by some guy named Mark Simon on the Animation
World Network that has somehow gained viral traction and that
people are apparently believing.
Itís all nonsense. Mr. Simon is, IMHO, an idiot. Blogger Meredith
Patterson puts him rightfully in his place, and describes
what is really going on, at maradydd.live journal.com. If
anyone sends you Simonís post, please send them Meredithís.
If thereís one thing I hate, itís lies and ignorance in public
Hereís the deal: Since 1978, everything thatís been created,
and much of everything that hadnít been published prior to
1978 or already fallen into the public domain, suddenly were
bestowed with automatic copyright ownership. A creator doesnít
need to do anything but create to have federally protected
The problem being that much of whatís out there is stuff that
no one is interested in protecting. Only a small fraction
of whatís been created has a copyright owner thinking that
he or she is going to ever be paid for it. For the vast majority
of stuff someone may have once cared about at one time, thereís
no current interest. Back when copyrights had to be registered
and renewed after the initial 28-year term, less than 15 percent
of the registered copyrights were renewed. Nobody cared.
This has caused a real problem with the public: What creative
works can be used, reused, revived, incorporated, or messed
around with when, under the current law, virtually everything
is technically subject to copyright ownership by somebody,
even though, for the vast majority of stuff out there, there
is no somebodyóat least no somebody who cares about their
Itís a massive disconnect, and Iíve seen it play out again
and again in ways that inhibit the dissemination of information,
of knowledge, of beauty, because folks were paranoid of publishing
pre-existing works out of fear that somebody would pop up
out of nowhere and say ďthatís mine!Ē
In her blog, Patterson uses the example of your parentsí wedding
pictures from 1955. You want to publish them? Guess what?
The copyrights are probably owned by the photographer! Who
was who? And is now where? You donít know? Uh-oh. I get asked
all the time by archivists and historians about what they
can and canít do with a box of old photos, or paintings, or
manuscripts, or books, that were found in an attic of an old
house, and that contain wonderful glimpses of history, and
for which a creator or current copyright owner cannot be determined.
I explain that publishing this stuff will involve a bit of
risk that a copyright holder might appear and spoil the party.
Archivists and historians generally donít want to know from
risk. So all this great stuff stays in boxes.
The Orphan Works legislation that Mr. Simon is so wigged out
about, and doesnít remotely understand, hasnít even been introduced
yet, but word is that it will be soon. The legislation will
probably seek to rectify the problem of lingering, abandoned
copyrights, to loosen this stranglehold of ghosts on our culture,
by allowing the reuse of pre-existing materials in situations
where after a reasonably diligent effort, no copyright owner
has been located. If, after the work is re-published, a copyright
owner shows up and says ďthatís mine,Ē the copyright owner
will be entitled to a reasonable licensing fee for the use,
but wonít be able to stop the use.
Space doesnít allow me to go into the details and potential
problems of the Orphan Works law, and they are significant.
But suffice it to say that thereís no bogeyman, thereís no
abject stealing, the sky is not falling, artists will not
starve while freezing in the dark. Nothing in the realm of
copyright law is ever even close to being perfect, and this
law certainly wonít be. Stuff can be gamed, faked, copyright
owners may have to be a little more vigilant. But the world
wonít be that much different than it is already: the world
of copyright is already a world of gaming and faking, and
copyright owners are supposed to be vigilant about their works.
The net from the Orphan Works laws, if theyíre done right,
will be a huge positive.
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMCís Vox Pop. Contact info can
be found at www.paul rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.