An Experimental Life

Note: At least two versions of this bill have come up, and future ones doubtlessly will, as well. All so far have been similar. I'll update this if something new is included in the next one.

There's been a lot of noise among webcomicers and others who post art and other content online about an "Orphaned Works" bill that supposedly "takes away copyright" from unregistered works. This is just noise. Those protesting most strenuously against the bill don't seem to have actually read it in its entirety.

The last version of the bill, which was vague in places (but still wouldn't hurt webcomicers) died in 2006.The 2008 version (which fills in the bulk of the vague wording in the 2006 bill) just passed the Senate and is headed for the House as of this writing.

If the Orphan Works bill becomes law
You still wouldn't have to register your copyright to be protected, and it would not make orphans of unregistered works or works without a copyright notice. It just puts limits on how much money you can collect in damages for infringement under certain very rare and specific circumstances.. If you don't feel like reading the rest of this page, the main thing you need to know is that even if you don't register, or put copyright notices or contact info on your work, you can still get money if you catch someone using it. If you DO register and/or put copyright notices and contact info (like the url of your comic) on your stuff, you can get MORE money, and do so more easily, if someone infringes.

Assuming this bill passed the House, to qualify for "reduced damages," the infringing party has to prove that they took all reasonable steps to determine whether or not the work was protected. Although copyright notices are still not required, if you DO put a notice and your url on your comic images, nobody can claim that they couldn't find you or that they thought the work was public domain. (And as stated in my article on copyright law, even if the infringing party isn't making any money from your work, they are still infringing.)

In other words, this bill can be a good thing.

To give an analogy of how it would work, let's substitute a priceless Ming vase for your work. Say you accidentally leave said vase in a compost heap at your old place when you move, and the new tenant finds it. He has every reason to think you threw it away for some unfathomable reason--Come on, man, it was in the freaking compost heap! So what does he do?

He can either let the vase sit there unused, use it, or sell it (or otherwise transfer ownership), but he'd have to jump through some hoops to do the latter two legally:

First he'd have to look inside and out on the vase itself for any ownership info. None. He contacts the Priceless Ming Vase Owners Registration Database to see if you registered your ownership. No love there, either. So then he has to dig through the rest of the compost heap, search the house for clues, contact the landlord (or realtor), and try other logical means to figure out where and from whom the vase was purchased to see if he could track you down that way, etc. He even takes out an ad in the Ming Vase Owners Monthly Review, but receives no reply.

Since he's done pretty much al he can, but still can't contact you, he has to make a good faith effort to figure out by other means whether you intended to abandon the vase. Since you left it in a compost heap (A Ming vase in a compost heap? What's wrong with you, man?), that should be a pretty good indication that you didn't want it, right? To be safe, he talks to the neighbors, who tell him that he always let them use the vase for free whenever they wanted to.

All of the above, plus the fact that you have seemingly disappeared from the face of the Earth, leads him to--quite reasonably--assume that you tossed out the vase on purpose, so he puts it on display in his bay window for anyone to ooh and ahh over free of charge.

Then one day you're back in your old neighborhood taking a walk, and see your vase in the window of your old house. You knock on the door and tell the guy, "Hey, that's my vase!" You whip out your receipt or affidavits or whatever to prove that you own the vase.

"Gosh, I'm sorry about that. Here's your vase back! No hard feelings, right?"

"Well...," you say, "Not to be a jerk or anything, man, but even though you acted in good faith, you still have to give me money in addition to giving my vase back." (Of course you have the number on hand of a lawyer who will take your case on a contingency basis, just in case.)

So now, you've got your vase back. In addition, the two of you can agree upon a fee for his previous use of your vase and--if he wants to keep displaying it and you're cool with that--future use, or you can pull out your pocket lawyer and sue him.

Assuming it goes to court-- "Okay," the judge tells you, "He still has to pay you for using your vase, but since you were an idiot and didn't leave any way to identify you as the owner or find you, and since he did everything he could to find you or find out whether you still wanted the vase, he doesn't have to pay nearly as much as he would have."

So yeah--You've got your vase back, and even though you were too stupid to deserve it, you've got some money out of the deal, as well.

See the following links for more information:
http://www.senate.gov/general/search/search_cfm.cfm?q=orphan+works&x=13&...
http://leahy.senate.gov/press/200809/092708a.html
http://lieberman.senate.gov/documents/crs/orphanworks.pdf