The House and Senate are both considering versions of copyright orphan work legislation.
What’s
an Orphan Work
Orphan works are copyrighted works whose owners are difficult or even impossible to locate. Producers
frequently hit the brick wall of discovering that the music, photographs, text, or other creative content they wish to use is an orphan. Since there’s currently no free pass under copyright law for “really trying to find the copyright owner”, in orphan work situations, the producer has the options of
- using something else,
- trying to re-format the use so it qualifies as a fair use, and
- using the material anyway and facing the risk of a rights holder emerging and demanding a license fee or other remedy – with
no requirement that the rights holder be “reasonable” in his/her demands.
Purpose
of Orphan Work Legislation
The pending orphan work legislation would restrict the copyright owner to reasonable compensation for the producer’s use of the work. The legislation takes off the table the copyright owner’s eligibility for statutory fees that can go up to $150,000 and limits the availability of an injunction.