Orphan Works
How Fine Art Registry™ Averts Copyright Tragedy
by
Cindy Hill, Esq. for Fine Art Registry™
Oh, how sad. I am looking at a postcard, probably circa 1930's, a lovely pastoral scene of immigrant girls tending sheep in a vale. There’s a postmark on the back, and the name of a photo studio in a nearby town – but the studio has long been closed, the family dispersed, no record of them having ever been incorporated, and local memory seems to indicate that over the years they were open, they had quite a few itinerant photographers working for them. I would love to use this photo, to create notecards, or on price tags or prints for my handknitting design business. But clearly, it’s copyrighted, because it’s a creative work fixed in a tangible medium. If the photo was taken in the 1930's, the odds are pretty good that we are still within the life of the artist plus 70 years, so it is unlikely that the copyright has terminated. And the things I’d like to do with this lovely picture, as homey as they may sound, are commercial in nature, and would not fall into a fair-use copyright exception.
Tragic though it may be, my postcard, therefore, is probably an Orphan Work, destined to a reclusive and lonely life in my box of collected antique postcards. Unless Congress steps in. What, you might wonder, would Congress be doing in my antique postcard shoebox? They’d be responding to the recommendations of the U.S. Copyright Office regarding the use of Orphan Works.
The U.S. Copyright Office has had its collective eye on Orphan Works – ‘copyrighted works whose owners may be impossible to identify and locate’ – for decades. In early 2005, Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee asked the Copyright Office to take a more detailed look at the issue. The Copyright Office responded by posting a notice in the Federal Register, then holding roundtable discussions in Washington DC and Berkeley, California, as well as soliciting written comments.
In January 2006, the Office submitted its report to the Senate Judiciary Committee. The Office reported that about half of the comments received in the course of their study documented bona fide instances of orphan copyright issues, enough to lead them to conclude that the problem is real, substantial, and in need of resolution. The report states that “Concerns had been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works into new efforts, or from making such works available to the public.”
If you recall that copyrighted works are protected the minute that they are fixed in a tangible medium, and do not require registration for copyright to attach, you can begin to imagine the sheer volume of Orphan Works that exist in the world. I suspect you are likely to be able to see examples of such works from where you are sitting reading this article: a hand-carved mask purchased at a market on vacation, with no artist name or mark inscribed; a stained-glass window hanging bought at a flea market; the unmarked but obviously handmade arts-and-crafts style lotus lamp sitting on my desk. If you were to with to reproduce any of these works, where you would find the copyright owner in order to negotiate a license?
Under the amendment to the Copyright Act proposed by the Copyright Office, a person who wishes to use an Orphan Work must first, in good faith, exercise due diligence to conduct a reasonable search for the copyright owner. According to the Copyright Office Orphan Works study, the most common obstacles to successfully identifying and locating a copyright owner include: 1) Inadequate identifying information on a copy of the work itself, 2) inadequate information about copyright ownership because of a change of ownership or a change in the circumstances of the owner, 3) limitations of existing copyright ownership information sources, and 4) difficulties researching copyright information.
The proposed statutory amendment does not contain any specific set of steps that must be accomplished to fulfill this search requirements, but places the burden on the person who wishes to use the Orphan Work to prove that due diligence and a reasonable search was completed. The Copyright Office recognized that what this entailed would vary depending on the nature, age, and source of the work. A reasonable search for a sound recording source might include the ASCAP and BMI databases, while a search for the source of a piece of poetry might include the Author’s Guild’s Author’s Registry. However, the Copyright Office report makes it clear that, if a work has identifying information on it, and information regarding the copyright ownership is in a publicly available database, then the work can not be considered an Orphan Work.
If the person who wishes to use the work can not identify and locate the copyright owner, then under the proposed legislation, they can go ahead and use the work (with any attribution possible), and if the copyright owner later surfaces, their remedies for copyright infringement are highly limited. They can only collect a reasonable use fee, without damages or attorneys fees and costs of bringing an enforcement action (which will preclude many people from asserting their copyright in these cases), and they will be unlikely to be able to enjoin the use of any derivative works. In other words, the artist who does not clearly and publicly claim their artist’s copyrights will, assuming Congress passes this legislation, be effectively unable to enforce their copyright against subsequent users. It would mean that I could not only use the photo on my lovely old postcard for my own commercial purposes, but that I could then claim copyright on a poster or my knitted-garment tags that use the photo as a background and my own text or images set over it – thereby creating a derivative work.
The artist who owns a copyright in a work he or she created is always wise to register it with the Copyright Office. However, the Copyright Office does not have an easily searchable image database, does not assist with putting identifying information on the work itself, and doesn’t have a method for tracking transfers of the item.
Registration of an artwork with Fine Art Registry overcomes most of the hurdles to finding a copyright owner which the Copyright Office identified – those very factors which create Orphan Works. With Fine Art Registry’s unique identifying tags on the work itself, and a publicly accessible, easily searchable database, there is no need for the tragedy of Orphan Works to arise from newly created fine art.
In May 2006, the Senate Judiciary Committee presented the Orphan Copyright Act to the House Judiciary Committee’s subcommittee on Courts, the Internet, and Intellectual Property, as bills of this nature must initiate in the House on their way to becoming law. On May 24th the bill passed its first step, being recommended out from the subcommittee to the full House Judiciary Committee for adoption. As of this writing, the House Judiciary Committee has not yet voted on the bill; assuming that they pass it, then it will go to the full House for vote, then over to the Senate Judiciary Committee and on for Senate vote. Given the strong recommendations of the Copyright Office, it is quite likely that the amendment to the Copyright Act will pass both houses in the near future.
But regardless of whether Congress passes this legislation, artists would do well to heed the Copyright Office findings regarding the problem of Orphan Works, and register their works not only with the Register of Copyrights, but also with Fine Art Registry™.
— Cindy Ellen Hill, Esq. | July 12, 2006
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What an interesting and "newsy" read. I'm thrilled you're writing for FAR. It's nice to read about things that are art related in the legal realm that you haven't heard about. I'm fascinated by what's going on in the legal world with regard to art whether it's pertaining to an artist that is currently or has had a struggle or if it's new legislation being proposed (history in the making) as in this particular article. I would have never known about this (don't have the time to wade through all thats out there at this juncture) and I'm glad to know I can look for some really great articles pertaining to my craft, at a site that I frequent daily.
Regards,GREAT JOB CINDY!
L. Wallace
July 24, 2006