7.23.15 MORE ORPHAN THAN NOT

This article originally ran in the 7.23.15 issue of Metroland.

It’s starting again.  I’m getting messages from frantic clients whose professional trade organizations are telling them that Congress is about to take their copyrights away. “How can they DO THIS?” “How can we stop them?”

            We’ve been here before.  No one is going to take your copyrights away.  Relax. 

What we’re talking about is a new round of orphan works legislation has been proposed by the Copyright Office and is heading to Congress.  And that’s a good thing.

            An orphan work is a creative work that might be copyright-protected, but might not be.  Sometimes there is no authorship information accompanying a copy of the work. Sometimes there is but the named author is untraceable.  Sometimes you don’t know if there’s even any kind of copyright protection.  For works created prior to 1964, you don’t know whether a work was registered with the Copyright Office or whether that registration was renewed after 28 years (back then copyright only arose upon registration and copyrights had a renewal term).  Since the Copyright Office online records only go back to the mid-1970’s, tracing registration for older works requires going to the Copyright Office and plowing through its card catalog, which is tantamount to searching for a needle in a haystack.  And for works created after 1977, well, everything is potentially copyright-protected because under current law, copyright arises upon a work’s creation.

            What this has created is a barrier to creativity—the inability to use existing works creatively for fear that someone is going to pop up yelling “infringement!” and suddenly you’re behind the 8-ball, facing liability that could be catastrophic.

            It’s a real and significant problem; I get calls all the time from people who want to use a photograph, a piece of artwork, some film footage, and often there’s really no way of knowing whether there’s an owner or who it might be.  I’ve gone on wild goose chases myself, and despite all the info on the internet, usually come up empty.  I’ll advise the client “well it might be infringement, but go ahead and use it anyway” which isn't exactly sound legal advice, but then I’d rather see new things created than not.  I had a client want to republish her father’s pulp fiction that was originally published in the ‘40’s and ‘50’s by a bunch of tiny publishers that don’t exist anymore but maybe were bought up and absorbed by bigger companies. I mean, I deal with these issues all the time, as does I’m sure every other copyright attorney out there.  It’s frustrating and stupid.  Copyright law stands in the way of its own purpose.

            In June the Copyright Office issued a 105-page white paper addressing orphan works, calling the problem “ perhaps the greatest single impediment to creating new works.”  The paper notes that some 30% of the books in the world’s major libraries are orphan works, and acknowledges that while fair use would protect many creative re-uses of works, fair use is too unpredictable for most folks to rely on, so they elect not to use orphan works at all. “By foregoing use of these works, a significant part of the world’s cultural heritage embodied in copyright-protected works may not be exploited and may therefor fall into a so-called ‘20^th Century digital black hole.’”

            What to do?  After examining the experiences of other countries in dealing with orphan works (and there are some seriously wacky “solutions” out there), the Copyright Office proposes that the law be amended to limit the liability of users of orphan works who can show they made a real effort to find a copyright owner and couldn’t.  The Copyright Office would issue guidelines on what constitutes a “real effort.”  Users would then file a “Notice of Use” with the Copyright Office.  If an owner of the re-used work shows up, the owner’s remedy would be limited to a market-based license fee.

            So what’s wrong with this?  Well, trade groups, most notably those representing photographers and illustrators, are jumping up and down yelling that the legislation will effectively wipe out their copyrights, that users will do a shallow search and then rip artists and photographers off, and that they’ll lose all control over how their works are used.  Nonsense.  The required search for an owner won’t be perfect but it will be rigorous.  And the internet makes most searches effective.  Have you noticed that Google Images (which is decried as a big bad infringement machine) has a little camera icon in its input box?  Yes, you can search for specific photographs and images using Google Images, which makes finding copyright owners (and online infringers) much easier.  That will be a required part of a search, to be sure.  For crying out loud, photographers and illustrators are already getting ripped off right and left and the proposed orphan works law will provide them with a quick and easy way to get paid for someone’s good-faith use of their works.  The sky isn’t falling. In fact, the clouds are parting.


Paul C. Rapp is a local entertainment attorney and musician who is happy to say that after 35 years of wanting to be one, he is now in fact a lifeguard.