I have been reading the various Orphan Works news articles for a large part of the day and I see many misconceptions both for and against this prospective bill. Many articles are followed by borderline hysterical comments such as, "But what about this situation...? They're just stealing my art!"

As a law student, I am by no means an expert on copyright law (that, by the way, is my disclaimer - don't take this article as legal advice by any means). I am pretty good at formulating hypotheticals ABOUT the law though - it's what we use to dissect and analyze the law. So instead of chatting endlessly for/against this bill, I decided to address specific hypothetical concerns (and a few other recurring questions). Remember that if you have any legal questions, an intellectual property lawyer is your best bet. All information here could be found by anyone that cares to sift through copyright statutes and case law.

Let's remember two things though:

First, go to the source, not someone who has heard about the bill third, fourth or fifth hand. The Copyright Office's (the primary proponent and instigator of this bill) opinion on the matter is here: [link]
(Be careful of dates - most of the Office's documents on this issue are from the 2006 bill, which was defeated on the floor.) If nothing else, read this document – the Copyright Office is stringent but not your enemy!

Second, I'd like to point out that this bill is in its beginning stages and could easily be squashed before this becomes a true issue. It’s not even in written form yet – just a proposal of a bill, really. It’s nowhere near the point the 2006 bill got to before getting defeated.



So let's get to the possible scenarios that people have put forward:

Question: What if I put a mark of some kind on my art, someone crops it and then uses it for profit? They can just say that it was an orphaned work!

Answer: No, not exactly. The thief needs to show "good faith" and "due diligence". No art thief is acting in good faith, and they certainly didn’t go through due diligence to find the true owner. This is simply copyright infringement and does not fall under the Orphan Works bill as proposed. Bad faith, by the way, is typically defined as “he knew or should have known” that what he was doing was illegal.

Question: But instead of being able to stand up and prove that the work is mine, the thief can just say they didn’t know! Or what if it’s some third party, who truly didn’t know that it was my creation?

Answer: Same answer for both scenarios – it doesn’t matter. You CAN just stand up and say it’s yours. The classification of “orphaned work” is not permanent. If you prove that you own the copyright, the court will place an injunction (i.e. an order that tells someone to do or to stop doing something) on the thief or third party that tells them to stop infringing. Under the proposal, you can then get statutory damages. They don’t exactly say what these statutory damages are, but it could be any fixed amount or surrender of the profits the infringer made on your work, etc.

Question: But while it’s considered an “orphaned work” they’re selling my work legally!

Answer: Yes. That’s true. But that’s a distinction in terms, not practical application. Lots of people (who are not the actual art thieves, who remember don’t fall under this bill because of their bad faith, but unknowing distributors) do just this, but the result remains the same – you can still take them to court. People who didn’t know they were doing something wrong might not get as stiff of a penalty, but that’s the part that good faith takes. Anyway, there aren’t a lot of professional publishers and distributors out there that are dense enough to believe a modern work is not copyrighted. Just as you do now, you have to be vigilant though.

Question: What am I supposed to do when something of mine is stolen though? This bill means that I have to go prove that it’s not orphaned in court – I don’t have the money for that!

Answer: Unfortunately, legal services are expensive and that’s not going to change anytime soon. But you would be paying a lawyer one way or another if someone steals your work. You can either pay one to argue basic copyright under present law or pay one to argue that it’s not orphaned work under this bill. For both, you’ll need an intellectual property specialist. I’m sorry, but that’s the way it works. There are always other legal avenues like pro bono clinics or special interest groups that will take on a case for cheap or even free, but I won’t explore that here.

Question: When I make something, isn’t it automatically orphaned? What about all those visual image stats, like 1 in 100 pictures will be orphaned if it doesn’t come up on Google?

Answer: To the first question, no. You signed it, didn’t you? You marked it? You put it on your website or your page on dA that identifies YOU? Then it’s not orphaned. It’s orphaned when a duly diligent search cannot find the connection between this work that’s floating around somewhere else and you. And I don’t know much about visual art searches, but a simple Google search is likely not due diligence (the proposal will define exactly what IS due diligence). There’s more involved. And remember, you can always reverse an “orphaned work” classification.

Question: What if I formally register my work with the Copyright Office?

Answer: That’s your best bet at winning summarily if someone tries to steal your work. The federal registry is included in the duly diligent search of a good faith user. Yes, it costs money. Yes, it’s a good idea to hire an attorney, especially if you’re unfamiliar with the process. These are the penalties for protecting your work, unfortunately. But you do NOT have to register all of your work – the costs of such a thing is the reason the law changed 3 decades ago. The 1976 amendment also was adopted so that we could fall in line with the international agreement – as a nation, we cannot step out of the boundaries of that agreement or we lose our status as a member of that convention.

Question: But I have a copyright anyway! That means it’s completely mine!

Answer: Uh, no. I know this is a shock, but copyright does NOT cover everything under the sun. Almost, but not quite everything. Think of a CD at a second-hand CD store – it’s not infringement to sell that CD again even though it’s copyrighted and even though no additional money goes to the artist. There are limits on copyright.

Question: What if someone else registers MY art? Would I then be displaying my own art illegally?

Answer: That’s a specious and fear-mongering argument and I have no idea where it came from. Copyright registration can be challenged. Someone can register your work and you can fight it, just like everything else here.

Question: So, you’re telling me not to be worried. You sound pretty biased.

Answer: On the contrary, I’m not telling you to anything but be aware of the true issues. Congress has often taken a decent idea and screwed it up. And then the courts could interpret it in a way that twists it beyond recognition. It’s happened and is happening more often than it should. But this is a democracy for a reason. Speak up!

I hope this clears up a few things for you. I was quite uneasy about “outing” myself, a virtual newbie on this site, but I think that if I reach one person and calm one person’s fears it was worth it. Remember that I’m not advocating or decrying this proposed legislation – I simply wanted to clear up a few misconceptions that are floating around.

Final note – I worked hard on this article, checking my information and referring to several other articles. Please don’t bash me or any other commentators on a personal level. Thank you!