Saucers of Mud

May 20, 2008

The Orphaned Works Bill

Filed under: Uncategorized — matt w @ 2:46 pm

[UPDATE: The previous link to the cartoon didn’t work; I found this permalink, which explains that it isn’t in the print newspaper and isn’t intended for regular readers. So the snark isn’t called for. Anderson’s thoughts on the matter are worth reading, and make me more dubious about the law in question — if the illustrators are really up in arms against it it’s more likely to be a bad idea. On the other hand, I have my doubts about the idea that this really prevents someone from selling exclusive rights to a work. Also, it’s mildly ironic that Anderson gives as part of the reason for copyright that no one can alter his work without his permission, but it appeared on the Chicago Tribune comics page without the context that he intended and that explains the meaning. In fact, I’m generally opposed to the idea that other people shouldn’t be able to alter work without their permission; I don’t think that Gilbert O’Sullivan should be able to stop Biz Markie from sampling him; this is aside from the question of whether Biz Markie should have to pay him, which is a much grayer area. (Ideally I think that the originator of the sample should get some kind of percentage of the royalties, which wouldn’t prevent small acts from doing any sampling, but would mean that if the sampled song was a huge hit the sampled artist would get lots of money. But I don’t know how to enforce that.)]

Nick Anderson, who drew this cartoon, appears not to understand how the second person pronoun works. That is: Why does he say “Your Copyright” when most of the people reading the cartoon have no copyright?

Anyway, I hadn’t heard of the Orphan Works Act, but it sounds pretty good. Thanks for spreading the word, Nick!

Less snarkily, there are obvious complications here — I doubt that Nick Anderson is a real fat cat — but copyright is horribly abused by legacy owners, and I’m generally on the side of people who want to make it easier to use ideas that are out there. If we could have a reasonable copyright period perhaps this act wouldn’t be necessary; as has been observed the de facto copyright period is however long it’s been since Steamboat Willie, plus enough lead time to allow another extension. (Another trite observation: It’s ironic that Disney is such a malefactor here, since so many of its movies are based on works that fell into the public domain before they came along.)



  1. I once got tangled up in a copyright issue and abandoned the project. It was really difficult for me (although it might not have been for a professional) to figure out whether the work I wanted to use–and “sample” is not a bad way of putting it– was or was not in copyright. The author was long dead, she’d had no children, and the University of Nebraska owned the copyright of her works. The work was early and I think under pre-1978 rules would have been in public domain.

    My brother, whose practice is much concerned with intellectual property, mostly software, says that in France authors have a “moral right”–one can’t alter or misuse their work, I think forever.

    OTOH, as a poet, even an obscure one, I’ve had someone come up to me at a reading and say how much he liked a poem of mine, Carolyn had sent it to him in e-mail. So buy my book, I wanted to say, and was annoyed with Carolyn. But it turned out that at least one person she’d sent that poem to DID buy the book. So, fair use? Once it’s in e-mail, it’s loose, and the author may get neither credit nor cash for it.

    By the way, you can use ideas that are out there. Ideas can’t be copyrighted, nor can facts. What is copyrighted is the particular form of expression of the ideas. But are the ideas really “out there” like dandelions on the lawn, or are they like bicycles on the lawn? An interesting copyright issue is the Richard Rodgers tune “Edelweiss,” from The Sound of Music. This is so convincing as a folk tune that people didn’t (and don’t) recognize that it has an author. Some church groups began to sing it with other words, and it began to be widely used. The Rodgers estate, though, defends its copyright–the tune belongs to the estate. (Completely irrelevant, but poignant: the lyric to Edelweiss is the last Oscar Hammerstein II ever wrote.)

    Comment by Matt's mom — May 21, 2008 @ 2:34 pm

  2. Lawrence Lessig, whose positions on copyright and IP law are generally very reasonable, opposes this bill as not really doing the right thing, nor in the right way.

    Comment by Ben — May 22, 2008 @ 4:38 pm

  3. Lessig is definitely convincing on this.

    The “moral right” idea seems absolutely horrible to me. That seems designed to make it difficult to make new works inspired partly by old works — I thought The Wind Done Gone shouldn’t have had any trouble at all (though I’m glad it wound up with the publisher making a donation to Morehouse; Mitchell herself was concerned with not depicting homosexuality or interracial sex).

    Ideas aren’t like bicycles or dandelions — they’re non-rival, meaning that if I use an idea it doesn’t prevent you from using it, unless there’s a legal prohibition from doing so. In the case of the poem, I want to say, hey, two people read the poem and one bought the book; which is better than none and none. But I’m not hoping to make appreciable money from my writing.

    I think maybe I have a different perspective on some of these issues because the role of copyright in philosophy is pretty negative. Commercial publishers charge a lot of money for subscribing to journals whose intellectual property was created by people working for free; it’s pure rake-off. (And the referees who do most of the work selecting the articles work for free too.) And then any restrictions on access are worse for the authors, who would rather have their articles as widely read as possible, and for the rest of the community. And when you see something like this; well, the publishers have a point, but I wish they wouldn’t say things like “Publishers argue that copyright laws must be rigorously applied in order to properly compensate their authors and uphold the tenure-and-publishing model on which much of peer review depends.” Except for textbooks and maybe some bestsellers like Theory of Justice, the authors are not compensated. I’ll never see a dime of royalties from my academic writing unless I put out a book, and even then I doubt I’ll see much more than a dime. So don’t mess up the e-reserve system on my account. I’d just as soon see philosophy publishing go all electronic.

    But things may be very different for people who are hoping to earn money from books, as opposed to publishing in order to keep us in other jobs that we get paid for.

    Comment by matt w — May 28, 2008 @ 1:32 pm

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