4.24.08 MORE ORPHAN THAN NOT

Don’t forget the Future of Music Coalition’s working musician seminar next Wednesday at the Clarion Hotel over on Everett. I’m told registration is through the roof so if you haven’t signed up do it now: futureofmusic.org.

Two weeks ago, when I raved about the brilliance of the panelists at the seminar, I didn’t have any idea that I’d be invited to be a panelist, too. Oops! Really, when I indulge in shameless self-promotion (and I do every chance I get) I at least try to be upfront about it. See you there.

I’ve been deluged over the last week with emails from worried clients and artist friends about this horrible “Orphan Works” copyright legislation before Congress that’s gonna wipe out everybody’s copyright. And bears, oh my! The culprit is an hysterical webpost by some guy named Mark Simon on the Animation World Network that has somehow gained viral traction and that people are apparently believing.

It’s 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.livejournal.com. If anyone sends you Simon’s post, please send them Meredith’s. If there’s one thing I hate, it’s lies and ignorance in public discourse.

Here’s the deal: since 1978, everything that’s been created, and much of everything that hadn’t been published prior to 1978 or already fallen into the public domain, suddenly were bestowed with automatic copyright ownership. A creator doesn’t need to do anything but create to have federally-protected copyrights.

The problem being that much of what’s out there is stuff that no one is interested in protecting. Only a small fraction of what’s been created has a copyright owner thinking that he or she is going to ever be paid for it, or even with an awareness that any such payment is even a remote possibility. Even for the vast majority of stuff someone may have once cared about, there’s no current interest. Back when copyrights had to be registered and renewed after the initial 28-year term, less than 15% 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, and 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 somebody, or at least no somebody who cares about their copyright?

It’s a massive disconnect, and I’ve 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 “that’s mine!”

In her blog, Patterson uses the example of your parent’s 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 don’t know? Uh-oh. I get asked all the time by archivists and historians about what they can and can’t 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 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 don’t 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 doesn’t remotely understand, hasn’t 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 “that’s mine”, the copyright owner will be entitled to a reasonable licensing fee for the use, but won’t be able to stop the use.

Space doesn’t 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 there’s no boogeyman, there’s 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 won’t be. Stuff can be gamed, faked, and copyright owners may have to be a little more vigilant. But the world won’t 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 they’re done right, will be a huge positive.