Publications
Orphan Works Myths and Facts
Here CAA addresses myths regarding current orphan-works legislation in Congress, dispelling some of the inaccurate information that has been circulating on the proposed bills. Please also see CAA’s general information on orphan works.
The bills would take away copyright protection from every work a visual artist ever created.
The bills do not take away or diminish the rights of artists or other copyright owners.
The bills establish limits to damages for users of a copyrighted work where the copyright owner could not be identified or found, despite a search conducted in accordance with detailed guidelines that the bills lay out. The bills do not excuse an infringing use of an orphan work just because there is a lack of identifying information.
The starting point is always that the user must conduct a diligent search for the copyright owner. If no copyright owner is found before the commencement of the use, but the copyright owner later comes forward and sues the user for copyright infringement, then if the user is found liable (the use is not a fair use) the user would have to pay the owner a “reasonable compensation” for that use of the work. The owner would also be entitled to an injunction preventing further use in situations where the use of the work was not transformative or otherwise incorporated into a new work. The bottom line is that good-faith users of an orphan work are shielded from unreasonable liability, and copyright owners are paid if they come forward—even after the use.
The bills would mandate registration of all visual artworks through expensive registries.
Neither bill mandates any sort of registration.
As today, copyright owners can register their works with the US Copyright Office. Whether or not a copyright owner does register with the Copyright Office or otherwise includes works in an online registry, the failure to register would not absolve the user of the obligations to conduct a reasonable due-diligence search if he or she wants to be eligible for orphan works treatment under the bills.
The purpose behind the “visual registries” provisions of the bills is to help artists and other copyright owners associate ownership information with the works and to assist users in finding owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace and provide services free of cost could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.
NOTE: CAA advises that you may wish to register your works with the US Copyright Office—not due to orphan works legislation, but because registration provides a copyright owner with certain benefits, including the potential of obtaining statutory damages against infringers. See the Copyright Office’s Copyright Registration for Works of the Visual Arts; CAA’s Committee on Intellectual Property also provides additional information on artists and copyright.
Unavailability of statutory damages means that owners of orphan works will not be properly compensated.
Owners of orphan works will receive proper compensation.
Both bills require that the user of an orphan work—who has complied with the obligation to conduct a due-diligence search and has provided attribution, where possible, to the copyright owner—pay a “reasonable compensation” to a copyright owner who sues the user successfully for copyright infringement. The bills define reasonable compensation as the amount that the parties, if willing, would have agreed upon had they negotiated a license before the use began.
If a copyright owner emerges to claim rights in an orphan work but the user refuses to negotiate in good faith or to pay the compensation within a reasonable time, the user, if sued successfully by the owner, would then be liable for all remedies currently available under copyright law, including actual damages or, if available, statutory damages. For willful copyright infringement, statutory damages could be as high as $150,000 per work.
The bills would institute registration formalities in contravention of international treaty obligations.
The bills impose no registration requirements of any sort on copyright owners.
Existing US law does not require owners to register their works to claim copyright, although owners must register their works prior to infringement (or on a timely basis after publication) in order to receive the added benefit of statutory damages and possible recovery of attorney’s fees. CAA therefore advises copyright owners, including authors and artists, to evaluate whether they should register their copyrights. The orphan works bills do not mandate any additional registrations beyond current law. To qualify for the limitation on damages that the bills would provide, a user may have to search registries for information about the owner. However, a user’s obligation to search these resources does not impose any requirement on owners to register their works.
Under the proposed bills, since the entirety of an infringed work can be included in a derivative use, then obtaining a copyright for the derivative work will amount to owning the copyright of the original.
The user of an orphan work incorporated into a new, derivative work only obtains a copyright in the parts of the derivative work that are new, not in the underlying original work.
A derivative work is based an original, underlying work. The user of an orphan work incorporated into a new, derivative work only obtains a copyright in the parts of the derivative work that are new, not in the underlying original work. For example, neither the artist who incorporates an orphan work photograph into a collage nor a scholar who uses the photo in an article obtains any copyright in the photo. Nothing in the bills would change this aspect of current copyright law.
Any user could fake a “diligent search” and then use the orphan works limitation to protect the infringement. Couldn’t a user falsify the records of a search?
Orphan works legislation does not make an owner more vulnerable to bad-faith users, nor will it make infringement any easier.
A user who fakes a “diligent search” effort would be considered a bad-faith user and would be on the hook for the full panoply of remedies under copyright law, not to mention potential sanctions by the court hearing the infringement case. The bills specifically place the burden on users of orphan works to demonstrate to a court that their searches were reasonable, in situations where the copyright owner appears and sues for infringement. Producing fake or falsified evidence would be perjury and a violation of law.
In addition, the bills provide that a defendant must, in answering the copyright owner’s complaint for infringement, “plead with particularity” his or her eligibility for orphan works treatment. If the defendant’s facts about the search are false, then the infringer’s lawyer would have to sign his or her name, attesting to the fraudulent conduct. If the copyright owner wins—because the user’s search for the copyright owner was fraudulent or otherwise was not reasonably diligent—the owner will be able to recover all of the damages to which he or she is entitled under current law. And, even if the search meets the reasonable-diligence standard set forth in the bill, the copyright owner will be able to recover reasonable compensation from the user. The fact that the infringer must, in all events, pay a reasonable compensation makes fraud extremely unlikely.
CAA gratefully acknowledges the permission of Public Knowledge, whose text has been adapted for CAA’s website. CAA’s position differs in some details from that of Public Knowledge.
Published in June 2008.
