Abandoned Art and the Orphan Works Debate

 

Every year, Orphan Works legislation gets introduced but not passed in Congress. Because economic matters take priority over less urgent matters like copyright issues, the legislation is likely to cycle through Congress without being voted on for years to come.

 

An orphan work is a copyrighted piece of work, but the artist"s identity is unknown or cannot be located. For example, the artist (or photographer, designer, etc.) may have published the work anonymously, or the artist"s identity has been lost over time. The work is then considered "orphaned.-

 

The Orphan Works bill, if passed, would allow good-faith users of copyrighted content to move forward in cases where they wish to license a use but cannot locate the copyright owner after a diligent search. Artists everywhere have been opposed to the bill, saying that it too easily allows people to reproduce their artwork with no penalties. It allows a loophole in the copyright protections that have always protected artists. Graphic artists fear that people will have a consequence-free means of taking images for free; it will be easier for people to claim they could not find the copyright holder.

 

On the other hand, publishers, filmmakers, museums, libraries, universities, and private citizens currently face risk and liability when a copyright owner cannot be identified or located.  In testimony before the Senate, a filmmaker spoke of the historically significant images that are removed from documentaries and never reach the public because ownership cannot be determined.  In testimony before the House, the U.S. Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that it and other museums cannot publish or digitize. 

The legislation would ease the orphan problem by reducing, but not eliminating, the exposure of good faith users. 

 

 

Some provisions that have been added to the legislation will make it difficult to "steal- work. For example, orphan works searches must be documented.  The Copyright Office will record and publish industry best practices and certify electronic databases, ensuring there is an effective and accurate method to research copyright ownership. One proposal is that a Copyright Small Claims Court could help graphic artists have an inexpensive way to rectify an infringement, should one occur. If the graphic artist who owns an orphan work comes forward, the user of the work would have to compensate the artist a reasonable amount. 

 

While it is unknown what version of the bill will pass or when, it is clear that Congress has heard the concerns of visual artists, because modifications are constantly being made to the proposed bill.