The House and Senate are both considering versions of copyright orphan work legislation.
What’s an Orphan Work
Orphan works are copyrighted works whose owners are difficult or even impossible to locate. Producers frequently hit the brick wall of discovering that the music, photographs, text, or other creative content they wish to use is an orphan. Since there’s currently no free pass under copyright law for “really trying to find the copyright owner”, in orphan work situations, the producer has the options of
- using something else,
- trying to re-format the use so it qualifies as a fair use, and
- using the material anyway and facing the risk of a rights holder emerging and demanding a license fee or other remedy – with no requirement that the rights holder be “reasonable” in his/her demands.
Purpose of Orphan Work Legislation
The pending orphan work legislation would restrict the copyright owner to reasonable compensation for the producer’s use of the work. The legislation takes off the table the copyright owner’s eligibility for statutory fees that can go up to $150,000 and limits the availability of an injunction.
The restrictions apply only if the producer was unable to find the copyright owner after the producer diligently and in good faith tried to do so. There are other conditions the producer must meet including providing attribution (if known) and including a notice that his production includes an orphan work.
What Orphan Work Legislation Does Not Do
The legislation has sparked some trepidation among creators. Visual artists are especially concerned because their work is often difficult to trace back to an owner.
I believe this legislation is a step in the right direction toward rescuing many forgotten works from obscurity. Obviously, the success and ultimate fairness of the legislation depends on how Copyright Office rules and court decisions interpret “diligent, good faith search”, “reasonable compensation”, and other elements in the legislation.
In the meantime, creators should be assured that the legislation does not change the fact that your work is copyrighted as soon as you create it. Some of the written analysis concerning the legislation has cited requirements that creators register with a private registry system in order to maintain copyright protection and that creators respond to every inquiry regarding use of their work.
I found no such requirements in my reading of the House and Senate versions of the bills – so I don’t know the source of that information. While the legislation does task the Copyright Office with identifying third-party electronic databases for pictorial, graphic, and sculptural works to make it easier for everyone to find the owners of visual artwork, there is no statutory requirement that any copyright owner register with such a database.
Also, being unable to locate the copyright owner is a completely different situation from a case in which a producer locates the copyright owner, submits a request, and simply does not receive a response. The legislation does not address the latter situation. Acquiescence on the part of the copyright owner does not mean the producer is free to use the material.