What Copyright Orphan Work Legislation Does and Does Not Do

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.

Comments

[Barney Davey]

Thanks Joy for your invaluable insights!

Your analysis provides a clear and level-headed perspective to ramification of the current Orphan Works legislation. I hope it helps artists gain a more thorough understanding of the law's intention and what they should do about it.

Not just visuaul artists, but artists of all media should be taking notice of the legislation. It is an important piece of legislation for their careers and heirs. Those with strong opinions should be contacting their representatives to register them.

I will be posting links to your thoughts and some others on my blog, Art Print Issues, in the near future.

[Richard Gagnon]

Copyright isn't lost on orphan works. The issue is that the legislation is too broad and allows current works, published and not published, to become copyright orphans that others can freely use until the copyright owner contests the usage. Not registering an image in the upcoming databases will not remove copyright, but could automatically orphan an image that otherwise has no identifying marks (either never did or had them removed) depending on what guidance will be developed in the future for a diligent search. Once something is orphaned, it is free to use until the copyright owner finds the usage. Once found, the copyright owner can only receive the minimimum level of compensation that would be considered reasonable.

The legislation would be better if it were limited to nonprofit use and/or to an age. This will allow resurfacing forgotten works in an educational manner without the risk of rampant infringement of works where it is difficult to find the copyright owner. An age limit would ensure that infringements are limited to that of a historical nature. It isn't hard to tell the difference between a 40 year-old photo and a current one.

Do a search for "Night of the Living Dead" at Amazon.com and you'll see 5-6 dozen companies selling the movie without providing any royalties to the copyright owners. That's because the movie was released without a copyright notice when copyright law required it. That loophole doesn't exist in current copyright law. Orphan legislation introduces a new loophole that copyright owners are concerned will likewise be abused.