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Orphan Works: A Recent Legislative History

(Reprinted from the Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, 14th Edition, published 2013)

In January 2005 , the Senate Judiciary Committee and the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property asked the Register of Copyrights to study the issue of “orphaned” copyright works and to report back to the Senate Judiciary Committee.

The U.S. Copyright Office defines “orphan works” as “copyrighted works whose owners are difficult or even impossible to locate.” These works are problematic because they are still protected within their terms of copyright, but their copyright owners cannot be contacted, for a variety of reasons, by potential users who seek permission to use the works.

The issue was brought to Congress’s attention in 2004 as part of an unsuccessful lawsuit against the Federal Government (Kahle v. Ashcroft ) regarding the length of the term of copyright. The purpose of the lawsuit was to repeal updates in U.S. copyright law from 1976  to the present that redefined copyright ownership, extended the length of copyright protection, brought U.S. copyright law into compliance with the Berne Convention, and criminalized Internet piracy as copyright infringement. The plaintiffs in the case argued that current copyright laws effectively protect all works and for too long, delaying too many works from becoming public domain and creating a larger class of orphan works. This delay, they argued, impedes the progress of science because it restricts the use of many works that would never have been registered in the first place or would not have been renewed after the death of their author.

Normally, the Graphic Artists Guild’s position on the issue of usage is that as creators of original work, graphic artists who own the copyrights to their images are entitled to full protection of copyright under U.S. copyright law for themselves and their heirs. If a potential user is unable to contact the copyright owner to get permission to use an image, then the user does not have permission—period.

However, the issue of use of orphan works is not as simplistic as it appears at first glance. It is made complex by the existence under U.S. copyright law of two distinct classes of copyright owners, which has created two categories of orphan works:

• Works created by individual living authors who still own their copyright or deceased authors whose copyright has passed to their heirs, and who are not able to be located either because they have not kept their contact information current with the U.S. Copyright Office, their names are not on their work, or they never registered their work at all.

• Works created under a work-for-hire agreement (or works  in which the author’s rights were bought out in full), where a business or corporation owned the copyright, and that business or corporation is defunct and its assets—including intellectual property rights—were not sold or assigned to anyone else. In these circumstances, the works are truly orphaned because although no one owns the copyright, the term of copyright has not expired, and therefore the work does not qualify for public domain status.

Closer examination reveals numerous unique situations that merit individual consideration for very compelling reasons, especially within the second category of works. An especially compelling argument for releasing the copyright on orphaned works and allowing them into the public domain pertains to preserving artistic works in danger of being lost forever, such as the need to restore decomposing silent films made in the 1920 s by Hollywood studios long defunct. A parallel situation exists for old books that are out of print.

The Guild’s position on the orphan works issue is that it is too complicated to be resolved with an all-or-nothing ruling. Instead, usage requests for orphaned works should be handled on a case-by-case basis by the U.S. Copyright Office, not by repealing U.S. copyright law and violating the Berne Convention.

Pressure from non-profit users, such as universities, libraries, archives, and museums, led to the request by Congress that the U.S. Copyright Office propose a solution to the problem at the beginning of 2006 . The Copyright Office’s proposed amendment to U.S. copyright law regarding “orphan works” was discussed by the appropriate Congressional subcommittees, and those committees held hearings that included “interested parties.” Those interested parties included the Coalition on Orphan Works, comprised of numerous groups of creative professionals from the United States, Canada, and Europe, including the Graphic Artists Guild.

In April of 2008 , the House and Senate both introduced similar bills, S. 2913  and H.R. 5889 . The Guild continued to urge inclusion of Useful Articles and Notice of Use clauses while reinforcing the inadequacy of current database technology to protect artist rights.

The Guild Board of Directors voted unanimously to oppose the Senate bill, calling S. 2913  incomplete, insufficient and indifferent. The Senate passed S. 2913 —The Shawn Bentley Orphan Works Act of 2008 —by “hotline” on September 26, 2008 . The House version of the bill was never passed.

The Guild argues there is no current way to identify copyright owners of visual art regardless of what active steps the owner may take to protect his or her legitimate ownership rights. Until an image-searchable, comprehensively populated, database technology is available that doesn’t impose undue burden on artists, the Guild focused its lobbying efforts on two bill provisions to provide a reasonable means of copyright protection:

• Excluding useful articles from being subject to the legislation, because the art on these items are the most vulnerableto infringement. This clause limits commercial use but not to the extent the Guild originally sought. This exclusion was in both versions of the 2008 bills.

• Including a Notice of Use clause requiring users to file a copy of the allegedly orphaned artwork in a publicly accessible database within the Copyright Office. This would make it possible for artists to proactively determine if their work has mistakenly been identified as being orphaned.

This clause was in the 2008  House version. The Guild acknowledges these compromises are not preferred ideals but decided to support the House version of the bill because it included a Notice of Use clause. That support was instrumental in ensuring that the Senate version of the bill did not get passed into law. It remains to be seen what Congress will do about orphan works in the future. The Copyright Office published a Notice of Inquiry (NOI) for Orphan Works and the Guild submitted comments on February 1, 2013  in response to the NOI.

© 2013 Graphic Artists Guild, Inc.


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