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?”
No one is going to take
your copyrights away.
What we’re talking about is a new round of orphan works
legislation has been proposed by the Copyright Office and is heading to
And that’s a good thing.
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
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
copyright-protected because under current law, copyright arises upon a work’s
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
It’s frustrating and stupid.
Copyright law stands in the way of its own
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 ‘20th 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.