A couple days ago my Twitter stream blew up with angry declarations about orphan works and pleas for artists to write their representatives demanding that they protect artists’ rights.
I was more than a little surprised. Flabbergasted would be a more accurate description.
I don’t think I’ve ever advised a client about orphan works. Mostly because I rarely advise people who are seeking to license work. I’m much more often talking with people who create work. And for those folks, in my opinion, orphan works are not a serious concern.
Looking at some of the literature that’s being passed around, I’m frustrated that it doesn’t really explain what orphan works are, what the Copyright Office is recommending, or how orphan works can impact an artist making her living from selling and licensing her work.
Thus this post.
I want to be as transparent as possible: I disagree with the stance of the group advocating against the recommendations in the report. I think their assessment of the proposed legislation is hyperbolic. I’m also a big fan (huge) of revising copyright policy in a way that encourages collaboration and sharing while still being respectful of the rights of individual artists.
But you don’t have to agree with me. The purpose of this post is not to advocate a position on proposed copyright reforms. It is simply to provide more information for creators who are curious about orphan works. In fact, if you think too much of my opinion leaked into this post, call me out in the comments.
My goal is for this post to be a helpful factual resource people can use to make up their own minds about the issue. If I’m not meeting my goal, I want to know.
What’s the hubbub about?
The U.S. Copyright Office recently released a report on two copyright policy matters: orphan works and mass digitization. Over the last year or so the Copyright Office has been exploring all sorts of copyright policy in preparation for an overhaul of the U.S. Copyright Act. The last time the Act got a major overhaul was in 1976.
Orphan works are works where it is extremely difficult, if not impossible, to identify and locate the copyright owner of the work. They’re called “orphan works” because the creator has, seemingly, abandoned the work. It is not simply that the piece isn’t signed; it’s that even though the person who wants to use the work has searched to find the copyright owner, they can’t find him or her.
Orphan works are common because there’s just so much stuff that has copyright protection these days and not everyone who owns a copyright knows it or is easily associated with the work. But it’s not common for an artist making her living from her work to have an orphan work. For an artist to have an orphan work, the work would have to have no association with her, and she wouldn’t claim the work as her own.
Orphan works are generally a problem for someone wanting to use a work. If they can’t find the copyright owner to get permission, they have no legal way of using the work. This is in part because copyrights are lengthy (default is life of the creator plus 70 years), so a work is protected for a very long time. The best advice for folks in this position is, essentially, “Don’t use the work, but if you do understand you’re taking on the risk of copyright infringement and could owe thousands of dollars if the owner ever shows up. Or they might not and you’ll be fine. Your call.”
Mass digitization is pretty much what it sounds like. It’s creating digital records of scads of physical works and organizing them in a database. Google Books is an example of mass digitization. Libraries and research facilities also conduct mass digitizations to protect the integrity of their collections. Mass digitization projects pose challenges because of the number of creators involved. Getting permission from that many people, and finding all of them, is difficult.
The report was released in June 2015 and recommended two fixes for orphan works and mass digitization.
OK, what were the recommendations?
For orphan works the report recommended legislation that would limit the liability of a good faith user of an orphan work. The report made recommendations about what a “good faith user” should look like, and what liability a good faith user would have if the owner showed up at a later date to claim their work.
To qualify as a good faith user the report recommended that the individual or entity would have to:
- Conduct a diligent search for the copyright owner. A search would be judged as diligent based on the work the person wanted to use and what type of search would be most fruitful given the type of work at issue. In certain situations, the good faith user may have to show they did several searches and even conducted paid searches. If later a court determines that the search wasn’t diligent, the copyright owner could sue the user for infringement and the user would not benefit from the legislation’s limitation of liability.
- File a Notice of Use with the Copyright Office. They’d have to report, at a minimum, what the work is, a description of the search(es) they conducted to try and find the owner, when they started using it, and how to get in contact with them. They’ll also have to attribute the work to the creator, if they know who that is, and use a symbol on the work that indicates it’s an orphan work.
- Pay the copyright owner a reasonable fee if the owner ever shows up. If a copyright owner discovers their work is being used without their permission, they can file a Notice of Claim with the Copyright Office. Once the Notice of Claim is filed, and validated, the good faith user would have to pay the copyright owner a reasonable license fee for using the work. The report recommends the fee should be “what a willing buyer and a willing seller would have agreed upon immediately before the use began.” This fee would be an alternative to being sued for copyright infringement; if the user didn’t pay, the owner could sue.
If someone uses a copyrighted orphan work without permission and they don’t meet the definition of a good faith user, they can be sued for infringement and be liable for damages.
For mass digitization, the report recommended a pilot program. Organizations who represent the interests of copyright owners would have to qualify to be able to license works to an entity wanting to perform a mass digitization. The license to digitize the works could only be for nonprofit educational and research purposes. No commercial use would be permitted under the pilot. The pilot would apply to literary works, photographs, and “pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works” (i.e., illustrations and such printed in books, plays, etc.). The report recommends that rights owners must be able to put limits on what they license their work for in a mass digitization situation and be able to opt-out entirely if they prefer not to have their work digitized. The Copyright Office posted a Notice of Inquiry, inviting the public to comment on the proposed pilot program.
Will this void creator’s copyrights or make common law copyrights invalid?
No. A copyright owner would still own their copyright under both recommendations.
I’ve noticed a lot of concern over the impact the proposed legislation could have on “common law copyrights.” We don’t really have common law copyrights any longer and that’s in part because you get a federal copyright in your creation as soon as you create it. If you decide to register your copyright, you can have access to statutory damages if someone infringes your work, and you have to have your copyright registered if you want to sue someone for infringement. But you have a federal copyright, automatically, in your work even if you don’t register it. That copyright is 100% lawful and allows you to have legal control over your work.
*The exception to you getting an automatic copyright is when you create a work for hire. In those instances the person hiring you to create the work automatically gets the copyright. To be a work for hire, a work has to have certain attributes.*
(Common law copyright can also sometimes refer to states’ copyright laws. I don’t read anything in the report or proposed legislation that would prohibit or preempt a state copyright from applying to a work.)
Would my work be “orphaned” if I don’t register it with the Copyright Office?
No. I don’t read anything in the proposed legislation that would make unregistered works orphan works. The report talks about a “diligent search” including a search of the U.S. Copyright Office’s registration database, but it doesn’t limit diligent searches to searches of registered works.
[Warning, opinion incoming] Based on my reading of the report and the proposed legislation, whether a search is diligent is evaluated in the context of the work the person wants to use. For instance, if a person grabbed an illustration off Tumblr, looked for it in the copyright database and couldn’t find it, then decided to use the work, they would not be protected by the proposed orphan work limitation of liability. Such a search wouldn’t be considered diligent and they would not be able to use the protection of the legislation. (Also in this hypo, they didn’t comply with the notice requirement, so even if it were a diligent search, they still wouldn’t be protected). [/opinion]
Creators can avoid orphaning their works by leaving a clear trail between themselves and their work. One way to do that is by registering the copyrights in your work, but you can also do it by using licenses and contracts, when appropriate, that describe your work and clearly state you own it; by including your information in the metadata of work you post online; by maintaining a publicly accessible portfolio of your work; and by leaving clear instructions about what you want done with your intellectual property when you die.
Will someone be able to copyright a work they create that uses an orphan work?
Yes, potentially. Derivative works—works that are based on an original work—can be copyrighted and when they are they have their own copyright. However, when a derivative work is copyrighted, the copyright only applies to the new material. It doesn’t reach back and give the copyright in the original work to whomever created the derivative work.
Analogy: My lovely wife makes a fresh blackberry pie, a creation she calls “Pie.” I see the pie cooling in the kitchen and think, “Man, that looks nearly perfect. All it needs is a dollop of whipped cream on top.” I dub my creation “Pie + Whipped Cream.”
Pie + Whipped Cream is a derivative work of Pie. If I could get a copyright in Pie + Whipped Cream, my copyright would only allow me to protect and control the whipped cream portion of my creation, the stuff I added, but it wouldn’t give me control over the pie itself. The copyright to Pie would still belong to Dylan, its original creator.
Is my work automatically eligible for mass digitization?
The report recommends that only collective management organizations should be able to license works for the mass digitization pilot. CMOs are organizations that have a membership of creators and those members have given the CMO permission to license their work. I’m not familiar with any CMOs for graphics or literary work, but the report points to ASCAP and BMI as examples of CMOs for music (which have their own issues).
My guess is that for the pilot to work new CMOs would have to be created. If you don’t want your work involved in mass digitization, the flip answer is: don’t join a CMO. If you’re asked to give any organization permission to license your work on your behalf, read the fine print and ask questions so you don’t inadvertently join a CMO.
The report also says that even if a copyright owner is a member of a CMO, they need to have the ability to limit how their work is licensed or opt out entirely. I interpret the language to mean that in order to legally license works for mass digitization, a CMO must to allow its members to be able to limit how their work is licensed and allow them to opt out of mass digitization licenses if they want, otherwise the CMO couldn’t qualify to issue mass digitization licenses. But to be clear, that’s my interpretation of the language.
What should I do?
Read the report. It’s long, but it’s accessible and no one will get mad if you skim the stuff you’re not interested in (Pages 121-124 summarize the proposed legislation for orphan works; the pilot for mass digitization is described in pages 82-102). Neither the proposed legislation for orphan works or the mass digitization proposal is currently before Congress for consideration, but they might be one day.
If you read through the report and feel strongly about the recommendations, one way or the other, write your representatives in Washington and tell them what you think! You can also submit comments to the Copyright Office telling them what you think of the mass digitization pilot. Be a part of this weird representative democracy experiment we’ve been running for the last 239 years. It’s imperfect, but still chugging along.
What do you think of the Copyright Office’s report and recommendations? Share your thoughts in the comments.
Categories: The Rest
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