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May 2008

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  • Advanced Licensing for Visual Artists
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  • Orphan Works


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  • Orphan Works
    by Ellen Million

    What the Heck is an Orphan Work?

    An orphan work is anything that has been created, for which the copyright owner cannot be found. Perhaps they've died within the last 70-120 years, perhaps the company with creative ownership has gone out of business. Possibly, the copyright belongs to a hermit living in Alaska with no Internet connection who has no web presence and doesn't show up in library searches, but they are still alive and kicking, and their copyright is still in every way in effect.

    An orphan work is not the same thing as a piece in public domain. For something to be in public domain, it has to be known that the copyright has expired or been released. Generally, the original creator is known (though not always and not necessarily). An orphan work may still be under a completely valid copyright, it's just that the copyright owner can't be found. We'll talk more about what this entails as we break down the bills that are in the congress now!

    The History of Orphan Work

    In January of 2005, the copyright office opened a year-long study to investigate the use of orphan works, prompted by cases where a piece of copyrighted work was deteriorating, or would provide unique educational use, but the copyright owner could not be found to give permission to reproduce or distribute. In our litigious (ie: law-suit happy) society, many institutions would rather not risk the chance that they can get their pants sued off just to preserve a disintegrating film reel or publish a WWII letter.

    In January 0f 2006, a 127-page report was released, detailing what was considered an orphan work, why it could be a problem, how the law was currently set up to handle them, some solution ideas, and lengthy discussion on how to keep them from happening. This piece of work has been quoted extensively in the last month, but it's important to read the document in entirety, as it discusses several options and does proceed to outline the problems with each proposed solution as well, and does not suggest in the end to implement some of the more radical ideas (such as requiring all artwork to be registered). It is a lengthy, boring, dry-as-dirt document that considers both the side of a copyright holder and the side of a well-meaning infringer. PDF of the full text.

    In March of 2006, there was an oversight committee meeting in the house of representatives to discuss the report (Recording of the hearing or PDF transcript of the hearing.), and a month later the senate had their own, similar meeting (Recording of the hearing.).

    In May, the Orphan Works Act of 2006 was put before the house in bill H.R. 5439. The official brief description is: "To amend title 17, United States Code, to provide for limitation of remedies in cases in which the copyright owner cannot be located, and for other purposes."

    There was no decision made on the bill at this stage. It was 'Forwarded by Subcommittee to Full Committee by Voice Vote.' (Full Bill) There it stayed, until it was re-introduced in the fall.

    The Copyright Modernization Act, H.R. 6052, was put to the house in September, 2006. The Orphan Works Act had been put into this bill as Title II. The bill died due to concerns in the other titles, particularly one regarding music rights. (Full Bill)

    It wasn't until March 2008 that the Orphan Works Act reappeared at the "Hearing on Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users," heard by the Subcommittee on Courts, the Internet, and Intellectual Property, to help shape a forthcoming bill. (Recording of the hearing.)

    In April of 2008, the issue hit the Internet in force, leading to a number of petitions and calls for action. The largest points of panic were the mistaken idea that the bill would require all artwork to be registered with independent, commercial registries, and that work would automatically be orphaned if it were stripped of identifying marks. (As happens entirely too often with artwork when some young twit crops out a signature and posts it on their Awesome Site of Artwork That Isn't Labeled.)

    And on the 24th of April, the controversial bill hit both the house and the senate again, as H.R. 5889 and S. 2913, respectively. (H.R. 5889 [house] and S. 2913 [senate].)

    What do the Bills Actually Say?

    The most important thing the bills say is that use of an Orphan Work is still infringement. They are not letting anyone off the hook or granting them immunity for using work that they didn't know was copyrighted. They are proposing that the law be amended to say that if a copyright owner resurfaces, they can't sue the infringer for more than reasonable damages. They can sue for any loss of value their work may suffer, and any normal and usual royalties, but not lawyers fees or punitive damages. (Punitive, or statutory, damages are charges beyond what the copyright holder actually lost or should have earned, in order to punish the infringer and to scare other people from doing something similar.) This is a "limitation on remedies."

    Specifically, this legal protection only applies if the following terms are met:

    1. The infringer, or person who used the work unlawfully, did a 'diligent, good faith' search for the owner, before using the work. (We'll talk about those terms in a moment!)
    2. As much information as is known about the copyright holder must be published with the work. For example, if the publisher knows that someone named J. Smith took this photograph in New York in 1950, he must print that with the photo in the book.
    3. They have to respect the wishes of the copyright holder when they show up -- if the real owner asks the publisher to stop using it, they must stop using it. There are some exceptions in this area, and you sort of have to follow them around in circles to figure out what is excepting what and from which subsection the subparagraph is being subjected*, but for most reasonable cases, the publisher must stop doing it if the artist doesn't want it done. (The publisher may not, for example, have to destroy printed copies of a book, but they can't print more!)
    4. And, if the use was commercial, they have to reimburse the artist reasonable compensation for the manner in which they used it. Here again we have subsections and subparagraphs out the wazoo, to protect cases which are strictly non-profit and educational, but even those non-profits and educational users who profited in any way still have to fork over a payment!
    5. All use of orphaned work must show a symbol (not yet released) indicating that it has been used without permission from the copyright owner.

    Additionally, both bills require that a comprehensive study be completed to investigate the copyright claims system, with an emphasis on individual copyright owners seeking small amounts of monetary relief, in particular a method of resolving disputes without requiring a law suit. It requires a report of the material in the bill to be brought back to the attention of congress, and an additional report on the function and effectiveness of the current registration system, and how it may be improved.

    The house version of the bill had three extra bits in it: It requires that the use of every orphan work be registered with the copyright office, where it can be publicly monitored, but not used as future proof in a second orphan work case (an infringer would have to perform and document their own search, not rely on the fact that someone else couldn't find something!). It also postpones the effective date of the bill until 2013, or until a comprehensive database is set up to facilitate a good faith search for a copyright owner. In addition, it allows a judge to award extra compensation in a law suit if a piece has been registered.

    Lawyer Fees

    Some of the concern over this is that it specifically limits remedies for lawyers fees. Potentially, an artist could need to take a distributor to court over use of an orphan work, and though they may win actual damages, they would have to pay for the lawyer themselves, and they are not able to sue for great amounts of punitive damage.

    However, the bills do not allow any legal limitation if the infringer does not "negotiate reasonable compensation in good faith with the owner of the infringed copyright, or fails to render payment of reasonable compensation in a reasonably timely manner."

    So, if a company refuses to reimburse someone for the work they use, they are no longer protected under this bill and can be sued for lawyers fees and punitive damages. They have to stop using the work (if requested) and make a good faith effort to give you a reasonable monetary award independently of the courts before they can take any benefit from this bill.

    Reasonable Compensation

    What the devil is reasonable compensation for art? 'Reasonable' is as wishy-washy a term as 'good faith' and 'diligent,' of course, which is why this is another section that has caused some nervousness. What if you and the infringer have totally different ideas of the value that use of the work has?

    Rather than define this exactingly, the bill lets the courts decide this case-by-case, like they do with good faith and diligent. That way, things that are unique to a form of art can be considered. In general, if you can supply a contract with a company who is validly using similar art in a similar manner, those rates will govern. A negotiation for fair reimbursement should be very much like the same negotiation if it had happened before the use of the work. If they don't play fair with you, or offer you reasonable rates, then when you take them to court, you can still sue the pants off of them punitively - this bill won't protect them at all.

    But keep in mind that copyright law, as it is now, only allows you to sue punitively if you have registered a piece, which may be where some of the confusion and fear over this bill comes from. Yes, that's right, the law is already that way. You can sue for actual damages now (how much they made selling your work), and losses (any loss of value their use did to your work), but not punitive damages... unless your work is registered.


    And that brings us to registration. It's easy to streamline the language of the bill down to the idea that if you don't register your work, you won't have to be paid for it, but that's like saying gravity goes down; gross oversimplification, and more than slightly inaccurate. The bill does mention registration at several points, and does say that a comprehensive system of registration should be pursued to make location of a copyright holder easier to find, but the language of defining a 'good faith' search does not specifically say that a search of a registry database meets that requirement. In fact, it specifies that a good faith search must include further action "based on facts uncovered by the search itself." A piece of work that is missing identifying marks (signature, copyright symbol, etc) is very exactingly described as not automatically an orphan work.

    Who determines what a 'diligent, good faith search' is, then?

    The testimony in the both the March 2006 and the March 2008 hearing, as well as the January 2006 report talk a great deal about problems in trying to identify visual work in particular in such a fashion that it can be documented and searched, and some of the difficulties in defining what constitutes fair reimbursement. Rather than give a specific method of search required to meet the terms of 'good faith' (such as a requirement for a work to be registered and show up correctly in a search), the bill leaves that up to a court, to be judged on a case-by-case basis.

    It does require that the Register of Copyrights (The Register is the official in charge of the copyright office - don't be confused by the word 'Register' into thinking that this means a registry!) "...maintain and make public, including through the Internet, a current statement of best practices for conducting and documenting a search under this subsection." This allows them to update recommendations for a search periodically as technology requires, and impose harsher or looser requirements for the documentation required to prove that an infringer performed such searches. This is one of the most wish-washy parts of the bill, and could cause a lot of 'what-if' unrest. It has been suggested that The Register could potentially decide to require all artwork to be entered into a database to be protected under this rule, possibly even at a cost to an artist!

    Our current Register of Copyrights is Mary Beth Peters, who has held this position since 1994, and is the author of The General Guide to the Copyright Act of 1976. (Her full biography at Her testimony at the March 2008 hearing was largely in favor of copyright owners. She said they rejected several proposals for a solution to the Orphan Works issue because "we did not wish to unduly prejudice the legitimate rights of a copyright owner by depriving him of the ability to assert infringement or hinder his ability to collect an award that reflects the true value of his work."

    On the subject of registration, it is important to realize that current registration does not offer publicly any artwork or 'deposits' made to the system (for example, discs of artwork or hardcopies that are mailed in as part of the registration process); you can view the files only under very specific circumstances and never duplicate or redistribute them. It is not currently set up for common public access of any kind. She says, "We think a government database would be wasteful, ineffective and fraught with legal and practical problems."

    When talking about what could constitute a good faith search, she stresses, "A short-list or static checklist should not suffice."

    "Such 'best practices' would come from the relevant copyright communities - and thus a user who is looking for the owner of a sound recording would look to the recording industry and recording artists for guidance, as well as to other available resources. A book publisher looking for the owner of a photograph would look to the best practices proffered by photography associations and, also, to the professional guidelines proffered by the publishing industry. The most advantageous feature of this approach is that changes can be made easily as practices evolve... We believe that the Copyright Office's role in technology should be limited to reviewing best practices that are submitted to us. For example, we would not want to certify databases or other technological tools because we do not have the technical expertise to undertake such tasks. Moreover, we are not persuaded that certification should be a central concern. A user should take advantage of all reasonable tools likely to lead him to the copyright owner, regardless of whether the government has blessed that tool." (Peters' full statement at the hearing on March 13, 2008.)

    This brings up the necessity of professional organizations that will be proactive in making reasonable requirements for a search for copyright owners within their arenas. Support the organizations in these positions, and be active in their decision-making so that artists are represented in the best possible way.

    In general, the copyright office has no plans to implement a required registry system. While this does not mean they may not ever, it is highly unlikely. Requiring such an action could also be considered a violation of the Bern convention, which clearly states that no formality, such as a specific marking or registration, must be required for a creator to enjoy copyright protection.

    The bills do say that the copyright office should also figure out what a valid search database might be like, and provide some kind of certification to approve such resources. The purpose here is not that these databases would act as a mandatory registration system, only that it could prove helpful to entities wishing to legally and forthrightly use work. Nowhere does the bill say that these would be accepted as stand-alone proof of a good faith search (in fact, quite the opposite!).

    What Happens Next

    These bills are before the Senate and the House now. They will get commented on, maybe amended a bit at this point, individually in each branch of congress. Once the bill has been discussed publicly for a while, amended a little (usually), discussed some more, and reviewed again, there is a vote, and it passes, or doesn't.

    If the bill passes one branches, it gets passed to the other for approval there. If it passes in both the house and senate, it goes to a resolution process, which will make sure that it goes back and forth until both bodies are happy with the exact wording.

    Then the bill is 'enrolled,' and the president gets to approve or veto it. If he approves it, the body of the bill is added to the law. If he vetoes the bill, and either branch puts up too big a stink, there can be a veto override, which will also add the bill to law.

    Major Misconceptions

    Bill Gates, as the owner of, is not the major backer of this bill. (He will also not send you $100 if you forward on an email, just so you know.)

    The bill does not say anyone can just use your work for free by saying 'orphan work!' and then not pay you. In fact, it says they have to pay you, it only limits how much you could sue them for.

    The bill does not require all artwork to be registered, by the government or otherwise, to be afforded protection by the law.

    What is most worth reiterating: in no way does this bill strip an artist of their copyright, and in fact, it spells out that orphan works are explicitly protected and that using a piece as an orphan work does not mean the loss of copyright in the future. What it primarily does is protect a well-meaning user (one who thoroughly documents their attempt to find a copyright owner first and pays them fairly when they show up, as well as respects their wishes for further use), from punitive law suits that could be so devastating that the mere possibility keeps them from sharing, preserving or enjoying creative work.

    It is vitally important to stay aware of bills like this, and to understand what it is they say and how they may affect you. It is critical that artists fully grasp what copyright is, how the registration system relates to it, and how the legal system functions, so that they can make informed decisions about how to share their work and how to protect it.

    Other Suggested References:
    Orphan Works at - one of the lawyers who helped pen the bills lays it out.
    Orphan Works at

    *They ought to release flow-charts with these things.

    Ellen Million has always had a passion for projects. Visit her site for prints and embarrassing archives.

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