New Orphaned Works Act Would Limit Copyright Liability
Here’s the problem that Congress is trying to solve: imagine that you are a well-known graphic artist who gains huge popularity from the funny videos you routinely post to YouTube. One day, you come across a vintage graphic from the 1960s at a yard sale; it would be perfect for your next video, you know exactly how you want to use it, but it contains no copyright information. You do what you can to find out if the image is still copyrighted and who it might belong to, but to no avail (the Copyright Office has no visual registry of works), so you go ahead and throw it into your video, which becomes a raging success, goes on to sell millions of copies on DVD, and is shown relentlessly on the vapid morning talk shows. And then, out of the blue, comes the lawsuit.
Such a picture might be an “orphan work,” one without an active copyright holder. Artists die, publishers go out of business, some people never registered their work in the first place. Even if some entity still exists who values the copyright on the object in question, it can be impossible to locate this person.
Congress is now taking a stab at solving the problem with two new bills just introduced by Howard Berman (D-CA) in the House and by Patrick Leahy (D-VT) in the Senate. The “Orphan Works Act of 2008″ (HR 5889 and S 2913) attempts to create a system where new creators can use old works without fear of massive lawsuits, provided that a good faith effort has been made to find out if the work in question is copyrighted.
If the provisions in the bill are followed and a copyright holder does emerge later, the bill prevents the copyright owner from seeking the normal penalties for infringement.
To qualify for this protection, creators must perform (and document) their “good faith” search for the copyright owner. They must be able to show that they could not locate any owner. They must file a “Notice of Use” with the Copyright Office before using the orphan work. They must provide attribution about the original copyright owner, if they can find this information (imagine a publisher who owned the copyright in a book but went out of business thirty years ago). They must include a special “orphan works” symbol that will be determined later by the Register of Copyrights. If all of these prerequisites are met, the creator can use the work in question with confidence, knowing that he will only have to pay a reasonable license fee if the copyright owner does emerge.
Photo by sgame.
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