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No Copyright Left Behind

Donít 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:

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 you there.

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 If anyone sends you Simonís post, please send them Meredithís. If thereís one thing I hate, itís lies and ignorance in public discourse.

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 copyrights.

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 copyright?

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.

óPaul Rapp


Paul 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 Comments about this article can be posted at rapponthis

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