Is it Really About the Children?

Rebecca Tushnet has posted a typically (not to say freakishly) exhaustive account of a recent panel at AU on the Orphan Works problem in copyright. The account is in four parts: Part I Part II Part III and Part IV.

I’m fascinated by the passions that the Copyright Office report has unleashed. When the orphan works problem was first raised, I was ready to dismiss it as a relatively minor issue. It turns out, clearly, that my judgment was wrong. Not only is “orphan works” not a minor issue in its own right, but it may be on its way to being a Schelling Point for the next wave of assaults on copyright, both from those trying to strengthen the existing system, and those trying to soften it. Say “orphan works,” and you expose yourself to arguments about all kinds of things, most of them familiar from earlier battles. The term of copyright is so damn long; why not require periodic renewals, like the patent system does? Copyright remedies are too draconian; why not use damages to approximate the market — or would that be “compulsory” licensing? What’s the role of ethical arguments in copyright? Should copyright remedies turn on the “good faith” of the user? And most interesting, to me: Is it appropriate to solve incentive/access problems in copyright by resorting to increased recognition of authors’ “moral rights”?

Two thoughts about this:

One: There a risk of a kind of earmark problem here. A good faith effort to solve a genuine problem gets weighted down with grievances from all corners of the copyright universe. That would be bad, and if badly handled on all sides, it creates a risk of stalemating copyright reform of any kind.

Two: If the comments that Rebecca reports are accurate, and I assume that they are, then the visual artists’ grievance really operates at a more fundamental level than “orphan” works. As Rebecca points out, this really is an opportunity for them to make a serious pitch for moral rights protection for their work generally, and resistance to the grievance shows the genuine complexity of the role of visual arts in the world around us. Given that complexity, a strong moral rights baseline would be bad for the copyright system overall, even if in some narrow class of cases it would be sensible.

On this second point, I have to disclose a pro-consumer, pro-complexity bias. More precisely: I own the negatives to my wedding pictures. Yes, I know; this undercuts the basic economy of the portrait photography business, and I’ve been lectured about this by photographers I know today, and it creates a cloud over my comments. I plead ignorance. I was in law school at the time, and I knew nothing of the struggles that photographers go through and little of the artistry that is theirs alone, and I knew even less about copyright law. I made a bargain with a photographer who freelanced on the side (his day job was chief photographer for a local newspaper). Fixed, relatively low price ($800 as I recall, though this was 1986 dollars) in exchange for the negatives and one set of prints. Nothing in writing; no copyright assignment or anything. We also got a nice set of portraits and three large albums worth of candids from the reception.

That doesn’t present an orphan works problem of any kind. But I wonder what would happen today if took the negatives to a professional photography place and I tried to get more prints made? Media reports and trade associations make the prospect of my making prints, from negatives that I didn’t shoot, pretty remote. Do I own the copyright? Was the photographer my “employee” under CCNV v. Reid? Maybe, but probably not, and I have no record (other than the negatives themselves) that shows that he was. Does delivery of the negatives demonstrate the intent that supports an implied license to make more pictures? Probably, but is that going to persuade the people — photographers — at the shop?

Yet both the negatives and the photographs are, in every colloquial sense that I can think of, mine. (Mine with my wife, of course.) They are both emotionally and physically parts of our lives; the photographer has no conceivable connection with them today. I know the name of the photographer. He was great, and the photos are terrific. I could probably find him if I tried to. Why on earth should I have to?

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