Publications
Orphan Works
An “orphan work” is any copyrighted work—book or other text, picture, music, recording, film, etc.—whose copyright owner cannot be identified or located.
Works can become “orphaned” for a number of reasons: the creator died and his or her heirs cannot be found; the work was made anonymously to begin with (e.g., a graffiti image on the street or an anonymous photo found in an attic or in a flea market); the owner sold the copyright rights in the work and did not register the transfer; the corporate publisher has gone out of business … the list goes on.
Because under US copyright law a copyright is automatically granted to a creator when a work is made (“fixed in tangible form”), and because copyright endures in a work for 70 years after the death of the creator, there are millions of works where the copyright has not yet expired but that have no identifiable or findable copyright owner.
When a work is “orphaned,” no one can give permission for it to be used. Absent fair use, then, users—including scholars, artists, publishers, and filmmakers—run the risk of paying substantial damages if the rightful copyright owner emerges and sues successfully for copyright infringement. To avoid this risk, users refrain from making legitimate creative and academic uses of the millions of orphan works in this country.
The inability to clear rights to orphan works is a huge problem for art scholars who wish to reproduce an old photo from a defunct magazine in an Art Bulletin article or publish illustrations in an essay about anonymous folk-art objects. Similarly, a museum or library with thousands of old photos in its archives may be unable to use them—and may be unable to reproduce images of artworks in its own collection! For artists whose work appropriates found or anonymous copyrighted work—such as images and sounds—those works, if orphaned, may be off limits.
Authors, artists, and publishers—all sorts of new creators—may avoid using orphan works because under current law, in the event that the rightful copyright owner emerges, sues for infringement, and overcomes a user’s fair use defense, the user might have to pay substantial damages and, in some cases, the copyright owner’s attorney’s fees.
The magnitude of the orphan works problem can be understood by reviewing the following studies and comments:
- CAA’s comments in response to the Notice of Inquiry of the Copyright Office. In preparing these comments, CAA issued a public invitation to the entire CAA membership to respond
- National Public Radio study on how sound recordings become inaccessible because companies will not reissue them
- Center for Public Domain, Duke Law School’s study on orphan films
- The Library Copyright Alliance’s comments in response to the Notice of Inquiry of the Copyright Office
Spurred on by the Copyright Office’s Report on Orphan Works to the Senate Judiciary Committee, efforts have been underway to amend the Copyright Act of 1976 to address the orphan works problem. Over the last several years, CAA and many other organizations have proposed that the copyright law should provide that if a user has conducted a reasonable search for the copyright owner but failed to find the owner, then the damages for infringement that the copyright owner (should he or she emerge) could obtain against the user would be limited. The Copyright Office also recommends this solution in its Report.
More recently, orphan works affected the outcome of a New York District Court case presided over by Judge Denny Chin. A proposed settlement to the Authors Guild, Inc., et al. v. Google, Inc. was in part denied because the proposed agreement would give Google a monopoly over millions of orphaned books. Many hope that the rejection of this settlement will reignite efforts to pass orphan works legislation.
CAA's Proposed Solution to Orphan Works Problem
In the diverse communities that comprise CAA’s membership, orphan works are a significant problem. Art publishing—already in financial difficulties—has been severely hampered by the inability to publish many artworks still in copyright. Scholars who work on early and mid-twentieth-century art are hit especially hard. Museums and libraries cannot provide materials to the public or to researchers; artists who work in collage or other appropriation practices also face risks.
Despite the misinformation that has circulated about the “danger” of orphan works legislation, CAA believes strongly that artists’ copyrights are not put at risk by the proposed legislation. See Orphan Works: Myths and Facts for more information.
Under the leadership of CAA’s Committee on Intellectual Property and with support and direction from CAA’s Board of Directors, CAA has joined with other groups, including the American Association of Museums, the Association of Research Libraries, the American Association of Museum Directors, organizations of documentary filmmakers, publishers, and others, to support the following approaches to facilitate the use of orphan works:
- Users should be able to use an orphan work after a reasonably diligent search for the copyright owner
- A search would be reasonably diligent if it was conducted in good faith with resources and technology reasonably available to the user
- Reasonableness of the search would be determined on a work-by-work and use-by-use basis
- Associations of users, such as CAA and others, could establish guidelines of best practices for conducting searches that are appropriate to their communities, and these would have some authority with courts in case a user’s search was challenged as not reasonable. Thus, CAA could help to ensure that searches for copyright owners of visual artworks would satisfy appropriate and customary professional standards
- The user should provide attribution when using the orphan work
- The user would have to include as much identifying information and attribution about the owner as possible, based on the information obtained during the course of the search
- The attribution information would have to be updated if more information became available to the user, and if the format of the use permitted such an update, as for example internet use
- If the copyright owner should emerge after the use commenced and successfully sued the user for infringement (i.e., the use was not a fair use), the user’s liability would be limited
- The user would be required to pay “reasonable compensation” to the owner. Here, reasonable compensation means the license fee that a willing buyer and seller would have negotiated for the user’s use of that work
- A safe harbor is established for nonprofit institutions, such as museums and educational and charitable institutions (though not for individuals): if, after the use commences, the copyright owner notifies the user that the use of the work is infringing, and if the user expeditiously ceases that use of the work, the user would not have any monetary liability to the owner. The protection from liability would not apply to new uses of that work (e.g., in subsequent editions of a book)
- A copyright owner who successfully sues the user of an orphan work for infringement could obtain reasonable compensation for any further use of the work, but not any other injunctive relief, if the user’s use was transformative (e.g., a new artistic work was created using the work) or the work was integrated into another work (such as a scholarly article)
CAA believes that these proposals would facilitate uses of orphan works without putting copyright owners at risk. Many works that have tremendous historical and cultural value would become available for new scholarship and new art, and the public would benefit.
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.
