7.23.15 MORE ORPHAN THAN NOT

This article originally ran in the 7.23.15 issue of Metroland.

It’s starting again.  I’m getting messages from frantic clients whose professional trade organizations are telling them that Congress is about to take their copyrights away. “How can they DO THIS?” “How can we stop them?”

            We’ve been here before.  No one is going to take your copyrights away.  Relax. 

What we’re talking about is a new round of orphan works legislation has been proposed by the Copyright Office and is heading to Congress.  And that’s a good thing.

            An orphan work is a creative work that might be copyright-protected, but might not be.  Sometimes there is no authorship information accompanying a copy of the work. Sometimes there is but the named author is untraceable.  Sometimes you don’t know if there’s even any kind of copyright protection.  For works created prior to 1964, you don’t know whether a work was registered with the Copyright Office or whether that registration was renewed after 28 years (back then copyright only arose upon registration and copyrights had a renewal term).  Since the Copyright Office online records only go back to the mid-1970’s, tracing registration for older works requires going to the Copyright Office and plowing through its card catalog, which is tantamount to searching for a needle in a haystack.  And for works created after 1977, well, everything is potentially copyright-protected because under current law, copyright arises upon a work’s creation.

            What this has created is a barrier to creativity—the inability to use existing works creatively for fear that someone is going to pop up yelling “infringement!” and suddenly you’re behind the 8-ball, facing liability that could be catastrophic.

            It’s a real and significant problem; I get calls all the time from people who want to use a photograph, a piece of artwork, some film footage, and often there’s really no way of knowing whether there’s an owner or who it might be.  I’ve gone on wild goose chases myself, and despite all the info on the internet, usually come up empty.  I’ll advise the client “well it might be infringement, but go ahead and use it anyway” which isn't exactly sound legal advice, but then I’d rather see new things created than not.  I had a client want to republish her father’s pulp fiction that was originally published in the ‘40’s and ‘50’s by a bunch of tiny publishers that don’t exist anymore but maybe were bought up and absorbed by bigger companies. I mean, I deal with these issues all the time, as does I’m sure every other copyright attorney out there.  It’s frustrating and stupid.  Copyright law stands in the way of its own purpose.

            In June the Copyright Office issued a 105-page white paper addressing orphan works, calling the problem “ perhaps the greatest single impediment to creating new works.”  The paper notes that some 30% of the books in the world’s major libraries are orphan works, and acknowledges that while fair use would protect many creative re-uses of works, fair use is too unpredictable for most folks to rely on, so they elect not to use orphan works at all. “By foregoing use of these works, a significant part of the world’s cultural heritage embodied in copyright-protected works may not be exploited and may therefor fall into a so-called ‘20^th Century digital black hole.’”

            What to do?  After examining the experiences of other countries in dealing with orphan works (and there are some seriously wacky “solutions” out there), the Copyright Office proposes that the law be amended to limit the liability of users of orphan works who can show they made a real effort to find a copyright owner and couldn’t.  The Copyright Office would issue guidelines on what constitutes a “real effort.”  Users would then file a “Notice of Use” with the Copyright Office.  If an owner of the re-used work shows up, the owner’s remedy would be limited to a market-based license fee.

            So what’s wrong with this?  Well, trade groups, most notably those representing photographers and illustrators, are jumping up and down yelling that the legislation will effectively wipe out their copyrights, that users will do a shallow search and then rip artists and photographers off, and that they’ll lose all control over how their works are used.  Nonsense.  The required search for an owner won’t be perfect but it will be rigorous.  And the internet makes most searches effective.  Have you noticed that Google Images (which is decried as a big bad infringement machine) has a little camera icon in its input box?  Yes, you can search for specific photographs and images using Google Images, which makes finding copyright owners (and online infringers) much easier.  That will be a required part of a search, to be sure.  For crying out loud, photographers and illustrators are already getting ripped off right and left and the proposed orphan works law will provide them with a quick and easy way to get paid for someone’s good-faith use of their works.  The sky isn’t falling. In fact, the clouds are parting.


Paul C. Rapp is a local entertainment attorney and musician who is happy to say that after 35 years of wanting to be one, he is now in fact a lifeguard.

7.9.15 Hodgery Podgery

This article originally appeared in the 7.9.15 issue of Metroland.

A while back I wrote about these hideous lawsuits brought by porn producers against people whose internet accounts where identified as being used to download porn torrents.  It was the ultimate shake-down: they demanded thousands of dollars or else the internet account holder would be named in a federal lawsuit, even though there was no proof that the account holder was actually the person who downloaded the porn.

            Most of these suits have been thrown out by judges smart enough to see through the scam.  And now there’s word that the FBI is investigating Prenda Law, a law firm that represented many of the porn producers.  Apparently there’s some suspicion that Prenda Law or someone acting on its behalf initially put the porn films up for download; Prenda waited for nature to take its course, and then started busting people.  Urgh.  Prenda Law’s been sanctioned by several courts for other types of unethical conduct, and now it looks like there might be some jail time coming, too.  Good.

            In other silly news, Lionsgate Studios is in litigation with Ameritrade.  Why?  Because Ameritrade ran a commercial that featured a cartoon guy holding a cartoon piggy bank in the air while an announcer says “Nobody puts your 401(K) in a corner.”  Lionsgate (which has a history of absurdly overaggressive legal behavior) has decided that this infringes its copyrights (or trademarks, or something) in the 1987 film “Dirty Dancing” and wants Ameritrade to pay up.  Like seven figures’ worth. Really?  Lionsgate could really use some adults on its legal team.

            A few weeks ago I mentioned that my little town was going to be part of a cooperative effort to bring universal broadband service to rural Western Massachusetts.  This sort of thing will be a growing trend, not just in rural areas but also in cities where the populace gets tired of being terrorized and ripped off by the likes of Comcast and Time Warner.  But not if some Republican state attorneys general have their way.  The AGs of North Carolina and Tennessee have just sued the FCC seeking to overturn the FCC’s recent rulemaking that outlaws state statutes that forbid local publicly-owned broadband companies.  On what theory?  Well, states’ rights, dummy!  The same theory that justified slavery!   Let’s see a real justification for this, other than fascist greed. 

            Dateline Finland!  Finland just passed a law that requires concert promoters refund ticket money if a concert sucks.  The law has its genesis in a 2013 concert by, of all people, Chuck Berry, where he was reportedly fatigued.  Chuck Berry, who just happened to pretty much invent rock and roll, was at the time 86 years old.  The threshold for refunds is when a show is determined to be “well below reasonably expected standards.”  By whom?  By a “generally agreed standard.”  What could possibly go wrong here?  Watch out, Kanye!

            Speaking of wacky Europeans, the European Union is considering doing away with a legal right I didn’t even know was a thing: the right of panorama.  Essentially the EU is considering a measure that will make it an infringement to post photographs that include public sculptures or buildings or anything that has copyright protection.   The sponsor of the bill is angry that big American corporations like Facebook are making money by allowing people to post snapshots of famous images.  Well, this is going to work out just dandy.

            This confederate flag deal is just breath-taking isn’t it?  Rarely in our lifetimes have we witnessed anything move so fast.  Removing the flag from government institutions is a no-brainer, but the corporate reaction is stunning.  There’s a lot of talk of “bans,” the First Amendment, and political correctness, but private companies are free to do what they want, and the collective and immediate actions of Amazon, E-Bay, Apple, Wal-Mart, etc. in dropping the racist symbol were remarkable.  NASCAR has banned official use of the flag and asked race patrons to not display the flagged, with predictable results.  The cable network TV Land dropped its twice daily airing of “Dukes of Hazzard,” which caused a massive internet shitfit.  As if there’s anything more sad than watching the “Dukes of Hazzard” in the middle of the afternoon.

            The thing that made me sit up and say howdy was when a friend posted the announcement that Lynyrd Skynyrd was dropping the confederate flag from its staging and merchandise.  I had the unfortunate experience of seeing Skynyrd about 20 years ago and it did look and feel a little bit like a Klan rally.  Then I came to find out that the announcement was 3 years old!  Skynyrd member Gary Rossington explained in 2012 that the imagery of the flag had been “kidnapped by racists and skinheads” so that it was no longer the symbol of pride and heritage it once was.  Which isn’t exactly true, but no matter; Skynyrd did the right thing long before corporate America did and good for them.

Paul Rapp is an IP attorney and proud Northerner who is going to see the Rolling Stones next week.