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Proposed US Legislation Could Orphan Copyrights

by Brad Holland and Cynthia Turner

From Illustrators’ Partnership

Proposed US Legislation Could Orphan Copyrights
February 20, 2006

The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive. http://www.copyright.gov/orphan/orphan-report-full.pdf

The proposal would not re-impose formalities, but would penalize artists who didn’t re-impose formalities on themselves. The strategy is to “limit remedies” for infringement in any case where an illustration or photograph was published without “relevant information” on the picture itself - or where relevant information has been removed:

“For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’s recommendation would make such markings mandatory...Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner.” (p. 9, emphasis added)

The report does not define a “reasonable search,” but says (p. 98): “a very general standard...will have to be applied by users, copyright owners and ultimately the courts on a case-by-case basis...” There will be no statutory damages, court costs or attorneys’ fees available for artists whose work has been infringed:

“Our recommendation [limits] the possible monetary relief in these cases to only ‘reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced.” (p. 12)

By limiting remedies for infringement, the Copyright Office acknowledges that individual authors generally lack the resources to police unauthorized usage:

“While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.” ( p. 117)

The Report expresses “sympathy” for this fact of life, but states that “[t]his problem . . . has existed for some time and goes beyond the orphan works situation, extending to all types of infringement of the works of individual authors . . . It is not, however, within the province of this study on orphan works.”(p.114, emphasis added)

By suggesting that artists may have to go to court to resolve even minor publication disputes, the Orphan Works Report raises a jurisdictional question that it doesn’t answer. US Copyright law is federal law and filing a federal lawsuit is prohibitively expensive. There are only 11 Federal Districts in the US and approximately 100 US District Courts. We’ve asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Court to be paid minimum fees for unauthorized usage. Their answer was they weren’t sure, but are considering establishing a copyright small claims court. However, this still doesn’t resolve the jurisdictional issue, unless the government establishes a Federal small claims court in every city and town in the US to resolve an increased number of copyright disputes. This seems most unlikely.

Another problem with relying on small claims courts is that awards are limited to US $2,000, which would cap the "reasonable royalty" allowable for any, usage, regardless of commercial value and number of works used. Small claims judgments are also unenforceable. Also since an infringer will need only prove that he could not identify or find the artist of an unmarked image, the judge may be forced to uphold the majority of infringements, regardless of the effect it will have on the copyright holder.

The Orphan Works Report notes that many respondents to the Study proposed “registries or other databases of owner or user information” as a possible solution of tracking rightsholders, but the report states that the Copyright Office lacks the resources to create and administer them:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector, and organically become part of the reasonable search by users by creating incentives for authors and owners to ensure that their information is included in the relevant databases.” (p.106, emphasis added)

For the record, when Congress was drafting the 1976 Copyright Act, they considered and rejected Orphan Works legislation. They acknowledged that an “orphan works problem” existed, but concluded that it was outweighed by the need for copyright protection for authors:

“A point that has concerned some educational groups arose from the possibility that... a life-plus-50 year [copyright] term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years [the term of copyright prior to 1978], would be protected much longer under the [1976] bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life-plus-50 system. Moreover, it is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights. The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (emphasis added)

Congress is scheduled to commence Orphan Works hearings the first week in March. They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. The Illustrators’ Partnership opposes this legislation outright and is working with other groups to mobilize opposition in the short time we have to do it.

— Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership

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