Tom Spurgeon's Web site of comics news, reviews, interviews and commentary

March 28, 2008

Jim Ottaviani On Orphaned Works Bill

The publisher and writer Jim Ottaviani wrote this site about yesterday's report that a new orphaned works bill is due to be introduced into Congress next week. He's smart, and I thought he had a take on things worth pulling out of the letters section.
"Without seeing the bill's new language, the phrase "reasonably diligent search in good faith" is probably still in there. It's imprecise, but for an important reason: Corporations aren't the only entities that want to use, re-use, or reformat orphaned works. Real people do to.

"So your 10 year old niece, writing an essay for a class, will be held to a different standard for what constitutes such a search than will Disney, adapting something for a movie.

"Further, the term "orphaned work" itself has a specific definition. Particularly for new work, it's not hard to make sure your creations don't and won't fit that definition.

"It is harder to deal with work you did long ago, didn't sign (perhaps because your contract specified you didn't get to), and maybe don't even remember doing. But the fact that it's old, unsigned, and forgotten does say something about whether you thought you got full value out of it then, and what its perceived value is to you now.

"Finally, and again relying on the existing language, even if a reasonably diligent search got done and a work was considered orphaned, if you later step up and claim it you can't sue for damages, but you're still entitled to 'reasonable compensation for the use.'

"If the new bill drops the notions of reasonably diligent search and reasonable compensation, then there is indeed a problem. But I'd bet those concepts are still in there."
The original post can be found here.
posted 8:00 am PST | Permalink

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