Loading ...

The Legal Affairs column welcomes questions from the readers of Communication Arts. This and some future columns will be devoted to answering questions posed by both our readers and editorial staff with respect to legal issues.

The Copyright Office has increased its fees. Can you discuss this and explain the benefits of registering copyrights with the Copyright Office?

A. To keep pace with rising costs, the Copyright Office has raised its fees. This increase took effect on July 1, 2006. The fee for registering a copyright had been set at $20 in 1999 and raised to $30 in 2002. That fee has now been raised to $45. Among the other fees increased are those for document recordation ($95), supplementary registration ($115) and additional certificates of registration ($40). The complete fee schedule appears on the Web site of the Copyright Office at www.copyright.gov/docs/fees.html. It is worthy of note that the fee for a group registration of published photographs was kept at $45 due to input from photographers and photography organizations.

Registration is not required to have the benefit of copyright protection. That protection comes into being the moment a work is created. However, as pointed out in Legal Guide for the Visual Artist, registration has the following advantages: “(1) the certificate of registration, if issued either before or within five years of first publication, is presumptive proof of the validity of the copyright and the truth of the statements made in the copyright application; (2) registration must be made before an infringement commences in order to qualify to receive attorney’s fees and ‘statutory’ damages (a special kind of damages that an artist can elect to receive if actual damages are hard to prove), except that a published work registered within three months of publication would still qualify; (3) registration is necessary in order to bring a suit for infringement of copyright (unless the infringed work is protected under the Berne Convention and its country of origin is not the United States); and (4) with respect to works published from January 1, 1978 to March 1, 1989, registration cuts off certain defenses that an innocent infringer might be able to assert due to a defective copyright notice.”

Q. The Opinion/Commentary piece on Orphan Works (“A License to Infringe” by Brad Holland, in the July 2006 issue of Communication Arts) was completely negative about Copyright Office proposals to allow usage of works when the copyright owners can’t be found. Is there any experience with this kind of proposal that would shed additional light on this issue?

A. To give some additional background, on May 22, 2006, a bill titled “Orphan Works Act of 2006” was introduced in the U.S. House of Representatives. This bill follows the Copyright Office proposal by allowing a person to use a work without permission if the person has “performed and documented a reasonably diligent search in good faith to locate the owner of the infringed copyright.” If the owner cannot be found after such a search, then even though the use is technically an infringement, the penalties for the infringement are minimal or nonexistent. If an owner discovers the infringement, the highest compensation that the owner can obtain is “reasonable compensation” and the infringement can continue. The owner is not allowed to seek damages, costs or attorney’s fees. If the infringement is “without any purpose of direct or indirect commercial advantage and primarily for a charitable, religious, scholarly, or educational purpose,” and the usage ceases after the owner complains, then the owner will not even have the right to ask for reasonable compensation.

This scheme is in many ways like the compulsory license contained in Section 118 of the copyright law. The compulsory license allows educational broadcasting stations such as PBS and its affiliates to use “pictorial, graphic, and sculptural works” without permission of the copyright owner. Any usage has to be accounted for and, if owners can be found, very modest fees must be paid for the usage. I had extensive experience with the Section 118 compulsory license acting on behalf of organizations such as the Graphic Artists Guild and the American Society of Media Photographers. It’s fair to say that almost no fees were ever paid to copyright owners pursuant to the compulsory license. The accountings would show the nature of the visual work, but the copyright owners were rarely located for the payment of fees. Essentially, the usage became free.

This is the problem with the Orphan Works bill. No matter how many times the bill uses the word “reasonably,” it simply doesn’t come to terms with the actual situation facing creative artists. For example, a “reasonably diligent search” under the bill would involve going through “the records of the Copyright Office” as well as other sources with information as to copyright ownership. However, only a tiny fraction of visual arts works are ever registered with the Copyright Office, so searching the records there will be of almost no value. And what is meant by other sources? By and large, these don’t exist. So most “reasonably diligent” searches will not locate the copyright owner.

This means that the work may be used without payment. What if the copyright owner discovers the use and comes forward to complain? The bill envisages a negotiation to determine “reasonable compensation.” What if the user and owner can’t agree on the right amount for “reasonable compensation?” The owner can then take the matter to litigation. Here the bill actually requires the copyright owner to bear, “the burden of establishing the amount on which a reasonable willing buyer and a reasonable willing seller in the positions of the owner and the infringer would have agreed with respect to the infringing use of the work immediately before the infringement began.” Unfortunately, in the real world, very few artists have the resources to pay the exorbitant legal fees necessary to pursue a copyright claim. What artist in his or her right mind would commence such an action when the artist is limited to only recovering “reasonable compensation” and cannot collect damages, costs, or attorney’s fees? And, in addition, the artist must carry the burden of proof with respect to what “reasonable compensation” should have been.

In fact, the Orphan Works bill is simply an appealing description for what should be called free use or, less politely, theft. Everyone roots for an orphan to be adopted, but what if we called the bill the Protection of Copyright Theft Act? Then we would be hoping that stern justice would be meted out to the immoral thieves. Also, while the Section 118 compulsory license only applied to educational broadcasters, the Orphan Works bill would apply to all users. The potential magnitude of the unrecompensed taking of creative work is staggering.

Moreover, the copyright law has long provided for fair use of works under certain conditions. A fair use does not require the permission of the copyright owner, but the fair use guidelines avoid the dangers that are so apparent in the Orphan Works bill. Four factors are used to determine whether using all or part of a work is a fair use: (1) the purpose and character of the use, including whether or not it is for profit; (2) the character of the copyrighted work (if it is news or factual, fair use is more likely to be found, whereas using fantasy or entertaining works makes a finding of fair use less likely); (3) how much of the total work is used in the course of the use; and (4) what effect the use will have on the market for or value of the copyrighted work. The court can determine how to weight the factors, and in the case of so-called Orphan Works a heavy weighting of the fourth factor would make infringement unlikely in any case. It would be far better to work within this long-established and tested framework than to create a radical departure from prior law that will leave most creative artists impotent to redress the unpaid use of their works. ca

X

With a free Commarts account, you can enjoy 50% more free content
Create an Account
Get a subscription and have unlimited access
Subscribe
Already a subscriber or have a Commarts account?
Sign In
X

Get a subscription and have unlimited access
Subscribe
Already a subscriber?
Sign In