home resources Orphan Works






There are two bills in congress that if passed will drastically change copyright laws for all artworks:
2D, 3D, film, music, literature - everything.
Read more here:
PublicKnowledge.org This page has an argument for the legislation followed by several rebuttals.

note: NAIA has no official position on any version of the so called "Orphan Works" bill. We suggest you research, make your own conclusions and contact your legislators with your opinion. No matter which version gets passed, if any, always register your work with the Copyright Office for maximum protection.

July 2008

On July 24, 2008, as a representative of the NAIA, I attended a seminar on the current proposed legislation concerning orphan works. The seminar was presented by the Georgia Lawyers for the Arts, Executive Director, Lisa Moore.

This is a very important issue for artist and brings to the forefront an artist's need to document their work, consider formal registration of their copyright, keep themselves and later their estates available and identifiable to the world as the creator of their work.
A work of art is "orphaned" when, although it is copyrighted upon completion, the owner is not known or cannot be contacted. If an owner is known or contacted and does not give permission to use a work, it is NOT orphaned. The concept behind orphan works legislation is simple: after a fruitless search to find the rightful owner, a searcher may then use a copyrighted work without the fear of hefty copyright infringement damages.

There are many reasons why a work could become orphaned. There might not be sufficient information on the work itself, ownership might have changed hands, or the owner's circumstances might have changed. Adding a further level of difficulty, current sources of information are often incomplete or difficult to research.

The ability to utilize previously existing works is important in many situations. Situations such as the adaptation of a short story in a visual medium, the exhibition of photographs or paintings, or the incorparation of a previously existing work into a new one are all legitimate occasions that require the permission of the owner. If an owner cannot be found or contacted, receiving permission is impossible. Orphan Works legislation was initially introduced in 2006. The original legislation was inadequate for artists. The latest versions of the legislation, the Orphan Works Act of 2008 (H.R. 5889 and S. 2913), are based upon the 2006 version with some significant changes.

The current proposed legislation, Senate Bill S.2913 and House Bill H.R. 5889, both provide some legal protection for the user of a copyrighted work as long as the user of a copyrighted work has performed a good-faith reasonable search for the copyright owner before exploiting a protected use. Each bill provides the copyright holder with damages limited to reasonable compensation for the particular use. The House bill contains some further requirements and additions. Each of these bills are still active however the last official movement to committee and calendar action was in May 2008, a flutter of activity in July 2008 on the Senate bill but no documented movement forward.

Orphan works legislation has been strongly supported by some, and strongly opposed by others. Several artist organizations have levied criticism at the previous & current proposed legislation, predicting dire consequences for copyright owners based on concerns about vague standards for what constitutes a reasonable search, the requirement of a database of visual works described in the House Bill, and the broad reach of the orphan works legislation. Several suggested changes have been made by these organizations including limiting the effect of the Act to users in the cultural heritage sector exploiting non-commercial uses. Others would have the "reasonable search" more clearly defined.

As with any legislation, neither the House nor the Senate Bill provides a perfect solution and as with other political stands, the choice to support or oppose is individualized. However, the House Bill in particular provides a fairly workable system for the utilization of orphan works. It provides a definition of a good faith search made by a potential user of a work, it provides a manner in which a documented search can be evaluated on a case by case basis, suggested filing of an "intent to use" by a user and a rather bold searchable database that would need to be developed for searchers to use.

The best way to protect your work is to register a copyright with the United States Copyright Office. While not required for protection, registration makes it more likely that you will be found via a reasonable search and your work will be sufficiently protected. The fee is modest especially if you can combine the works into some sort of grouping under one(1) registration and online registration is now available. The 1976 Copyright Act allows for no statutory damages unless the work is registered. Section 504.B of the Copyright Act points out that registration of a work is a must for any court case of infringement.

Helpful Links:
U.S. Copyright website for Orphan Works: http://www.copyright.gov/orphan
This page links to the Orphan Works Act of 2008 (HR 5889)
This page links to the Shawn Bentley Orphan Works Act of 2008 (S2913)

Library of Congress tracking Senate Bill 2913:

Library of Congress tracking House Bill HR 5889:

Public Knowledge page on Orphan Works: http://www.publicknowledge.org/issues/ow
(per the attorney, this is the most balanced view)
Groups critical of the current legislation:
Illustrator's Partnership of America: http://www.capwiz.com/illustratorspartnership/home
Advertising Photographers of America: http://www.apanational.com

- La Trece Coombs


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