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Saving the Orphan Works

April 27, 2008 - by Donny Shaw

There are a lot of creative works in the world that are protected by a copyright, the holder of which can’t be tracked down. These are known as orphan works, and a pair of bills introduced in Congress last week seek to bring them back into the arena of creative reuse. The bills, H.R. 5889 in the House and S. 2913 in the Senate, would limit the amount of statutory damages that could be awarded should the copyright holder of an infringed orphan work eventually pop up.

The idea behind the bills is simple: if you want to use a work that might be copyrighted, but after a diligent search can’t find the owner, you may use the work without fear of a prohibitively large lawsuit.

What constitutes a diligent search? Here’s how it’s spelled out in the bill:

  • the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself.
  • the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (these “best practices” will be created and made available by the Register of Copyrights upon the bill’s enactment).
  • the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

And in the off chance that a copyright holder shows up after their work has been improperly infringed as an orphan work, the bills would provide for them to be “reasonably compensated.”

The House version of the bill contains a provision aimed at encouraging more artists and other creators to register their copyrighted works. A work does not have to be registered in order for it to be officially copyrighted. It’s a formality; the copyright exists regardless of it being registered with the copyright office. The House bill would encourage more people to pay to register their copyrights by allowing the courts to place a higher value on registered works when determining reasonable compensation. This bit of the bill has some artists concerned that it will free up all their unregistered copyrighted work to be used by others as orphans. Here’s how this was described during an interview between artist Brad Holland and Mark Simon of the Illustrators’ Partnership:

>Holland: Under this orphan works legislation, nothing you do would be protected. Not a single thing – not a sketch, not a finished picture, not a snapshot, not a home video – nothing you do would be protected unless you registered it with a commercial registry. Now these commercial registries don’t even exist. The idea is they’re going to change the law, in a sense orphaning anything you have ever done or that you ever will do unless you register the work with these so far non-existent registries, which they expect the private sector to pop up and supply.
>Simon: So, we have to pay to own our own work?
>Holland: Yes. You would have to pay to own any work that you wanted to protect. Now, of course, if you didn’t mind creating something and letting it sit, and hope that nobody found it and infringed it, as the guy at the copyright office said: “go ahead and be my guest.” But, if you want to protect anything you do for either commercial, or just as a matter of protecting your own privacy – as a matter of protecting your own creative ideas. You know, suppose you do a sketch – suppose you do a job for a client and send them five sketches. They pick one. You have to register the other four too because there’s no telling that the art director might let the sketch sit in a drawer, somebody else could find it, it doesn’t have a name on it, and suddenly it’s their idea, it’s their sketch. They can use it however they want. That would be the premise of this new orphan works legislation. In effect, it would orphan ever work that you’ve ever done, including work that you’ve registered with the copyright office over the last 30 years. If you have already sent a registration to the copyright office and registered your work, under this orphan works bill you’d still have to register it again with a commercial registry.

In a blog post entitled “”">Six Misconceptions About Orphaned Works," Meredith L. Patterson counters some of the claims coming form concerned artists (particularly those voiced in an article by the above interviewer, Mark Simon). Responding to Simon’s statement that, if someone doesn’t pay to register their copyright, “anyone in the entire world will be able to use it for free,” Patterson says:

>Perhaps he’s envisioning a scenario where a user spends five minutes googling, comes up with nothing, calls that a “good faith” search and forges ahead with an infringing use. That’s not going to fly before the court; the user will have to detail how he conducted the search, and if the copyright owner can demonstrate that no, actually, it is quite easy to find the work’s original owner, the “good faith” provision doesn’t apply. And even if the “good faith” provision does apply, the Copyright Office recommends that the user should still have to compensate the owner for a reasonable amount.
>The basics are, well, pretty basic. An orphaned work is a work for which no legitimate rights-holder can be found. If the legitimate rights-holder resurfaces, it is not an orphaned work any more. Plain and simple.

This debate seems to be anticipating some future legal precedent that will have to be set by the courts, but it’s the main issue accompanying the introduction of these bills.

More immediately, there are several differences between the House and Senate versions of these bills that will have to be worked out. Plagiarism Today lists them in convenient bullet points.

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  • Anonymous 04/28/2008 7:59am

    Public Knowledge wanted to come up with a website where you could make a search on any work to see if it was orphaned or not. Not sure what the status is now. It seems that if the information about a work and its orphan status were up it would help new creators and at the same time help old creators find their lost works.

  • Comm_reply
    donnyshaw 04/28/2008 9:11am

    Yeah. The bill would lead to the creation of this website. Actually, there could be several visual registry websites created under the bill. It would put in place a certification process for the Copyright Office to approve commercially produced registries.

    A lot of visual artists are worried that it would cost too much money and take too much time to digitize all their work and post it to these sites. They also seem to be worried that people may successfully make a legal argument that looking up a work in the registries constitutes a “diligent search.”

    Seems like an issue that could potentially be taken care of in the best search practices that are to be drawn up by the Register of Copyrights. A work does not have to be registered to be copyrighted, and the best practices should reflect this fact.

    Here’s Public knowledge’s visual registry proposal (PDF):

  • swdesign 05/01/2008 6:47am

    We have a registry – it is called the library of congress. It works well. This orphaned works legislation is severely flawed and allows copyright infringers far too much leeway while failing to protect the legitimate owners of the works.

    See the furor in industry groups like Advertising Photographers of America, ASMP, etc./ Their concerns are legitimate and this legislation would trample the rights of those who creat cpyrighted materials everyday.

  • zoe2020 05/06/2008 7:55pm

    1. Are they really trying to privatize copyright registration?? I didn’t read ANYTHING that referred to that in this bill.

    2. Artists need to take appropriate steps to protect their work. Artists don’t have major corporations that do that for us. This is what the copyright office run by the government was for, I thought.

    3. If someone uses a song without first searching whether or not that song is “public domain” then depending on the usage, the recording industry would bankrupt them for it. Visual Artists should be given the same protections. If you can’t find the owner of a car that doesn’t mean that it’s yours to drive anywhere you want. It means that you leave it alone until you find the owner and ask permission to drive it. Or you leave it where it’s parked. Period.

  • Anonymous 05/10/2008 9:30pm

    A few problematic concerns come up:
    1. Having to “register” a creative work in the private sector that already has the US and International protection of copyright to keep it from being “orphaned” sounds suspiciously like a pay-for-protection racket.
    2. The existing copyright laws are working so, while supporting an adequate solution to the orphan works question, changing them this drastically and quickly (this is being fast-tracked) says there is a LOT OF $$$$ behind making this unnecessary law.—-
    —-what is the pay-off for its backers?
    This is the main question.
    3. If there is a pay-off, then there are those who will benefit, profit, but it will not be the artist who these laws are meant to “protect”.

    If this law passes, then we will find out quickly—- most probably those who are these paid registration companies/ the new managers of all the “orphaned/un-orphaned” works. A major search and archive technology-capable company already in existence is a good bet, and of course large publishers.

    The “reasonable compensation” for mass infringements will probably much less than the normal licensing fee artists normally would be receiving.

  • Anonymous 05/12/2008 5:44am

    Meredith L. Patterson has no capital AT ALL in the art communities.
    She is just a blooger with an flawed opinion.

    Right now popular professional artist communities are foaming at the mouth over the threat of this upcoming legislation.

    I would read some good opinion from copyright lawyers:
    (This in one hell of a good blog on the issue)

    International Implications

    The global marketplace will become even more difficult to navigate because of this bill. International Artists’ rights will be greatly compromised here in the US. This invites sanctions under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
    Furthermore, if a manufacturer were to rely on the US “Safe Harbor” for orphan works and ship the merchandising containing an infringing work to a Berne Convention country, the manufacturer could face stiff penalties for infringement as the Berne Convention does not recognize such a term as “orphan works” and states that copyright ownership is free from formality. The Berne Convention gives US Citizens the rights to protect their work in other countries, but this bill would mean that US Citizens may not be able to protect his or her own rights in their homeland if “formalities” were not followed.

    Economic Impact

    A prime example of an impact of this Bill that has not been considered is tourism. Rural Art Communities, Amish Crafts persons, and Artisan Communities will be dramatically affected by this. Most of these communities contain unsophisticated creators that bring about substantial tourism dollars to many economies. At this time, the only manner that many of these works are protected are under the current Copyright Law. Many of these works would be made orphans and subject to mass production. The charm, uniqueness and even financial incentives for creating unique, originals will be gone. The items created by these special creators would readily be available for the mass market without a cost effective and reasonable way for these creators to seek compensation.
    Please know that our firm is willing to answer any questions that you may have or provide testimony on this matter at any time. We are a law firm that handles these issues on a daily basis. Our representation is diverse including famous brands, famous artists, manufacturers and those waiting to be discovered. I personally hold a Juris Doctor and a Master of Laws in Intellectual Property. We live copyright law on a daily basis and would see first hand what consequences this Bill would have on both sides of this issue.

    And this opinion on Orphan works is Posted by Bruce Krysiak
    on another site:

    From Stephen Donager ( "I have been working with a handful of attorneys in opposition to the orphan works legislation for about a year now and have fully researched it. The “orphan works problem” is only a problem for those who profit from the unauthorized commercial use of the works of others and want to keep those profits. The copyright act provides for either statutory damages of profit disgorgement as damages for a claim of infringement. For non-commercial uses, there are no profits to disgorge. For “innocent” infringement statutory damages are as low as $250. Thus, the photograph shop and museum examples below are serious red herrings – the reality is that no one is bringing claims against innocent non-commercial users.

    Although there is not much in the law that is really simple, this issue is. One of the fundamental principals of copyright law is that: “No one should profit from the unauthorized reproduction of the work of another,” regardless of whether the infringement was innocent or not. Orphan works legislation destroys this principal. It will allow people to use works they come across and keep (at least most of) the profits as long as they can show that they undertook reasonable efforts to find the owner.

    The problem is that there is no effective way to search for the owner of a work. There is no image recognition software or other vehicle that would make the Copyright Office registrations searchable, and there is no other existing search mechanisms. So anyone can SAY that they undertook reasonable efforts to find the owner (a meaningless statement in most cases),and then use works that they should know they have no right to use with virtually no recourse.

    Orphan works legislation is a horrible “fix” to something that is not broken. Among its sponsors are marketing companies, corporations that profit from the use of music, art, and photography in their advertisements, and large studios that are well equipped to protect their works. Artists ARE at risk.

    I turned my attention away from this issue about 6 months ago when it appeared that the legislation was not going to get to the floor of Congress that session. I got an email today indicating that it was being sent to the floor again. I agree that last-minute hysteria is suspect, but this is a real issue, a bad piece of legislation, and a good opportunity to communicate with our government representatives (who I understand to be among the uncommitted on this issue)."

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