Orphan Works and Creators — What's the Deal?

Let’s say you wanted to use an existing piece of music in a new creation. You managed to track down the creator, who gave you his or her blessing. You’re all set, right? Not so fast. Copyright owners, who are not necessarily the creators, have the right to license new uses of their works. If the copyright owner can’t be found, you have no legal rights to use the work, even if the creator is locatable. It’s an “orphan work”.

Let’s look at it from the flipside. Say you’re an artist who signed a record label deal at some point. As part of your contract negotiations, you made it clear to the label that you required approval of and payment for new uses of your recording. But when you signed on the dotted line, you also transferred your copyrights to the label. Then the record label was bought out by another label. And then another, and another. Now nobody — including yourself — knows who owns your recording. It has become an “orphan work.”

Orphan works are copyrighted works whose owners are difficult or impossible to locate. Meaning that, although they belong to someone, it's not clear who. This makes it difficult to use the work in a new creation and also complicates archiving efforts. (Check out our orphan works fact sheet for more info.)

There is currently a Congressional effort to modify the rules surrounding orphan works. In April 2008, Senators Hatch and Leahy and Congressman Berman introduced S. 2913/H.R. 5889. The proposed bill allows for use of works for which the copyright holder can’t be found and limits liability for those users who perform and document “a qualifying search, in good faith, for the owner of the infringed copyright.”

While the legislation provides some redress for users of orphan works by balancing the new user's rights with the copyright owner rights, it totally fails to consider the interests of the original creators. Remember, when musicians sign record contracts, they often transfer their copyrights to a publisher or label, usually with certain restrictions and payments for use. However, the “ownership” of copyrights is a moving target in a consolidating record industry. Copyrights are routinely bought and sold as labels merge, go out of business or are bought by other entities. It's not uncommon for a copyright to change hands several times in the course of it and its creator's lifetime. This means that creators and copyright owners can be two entirely different entities.

Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label. Let’s look at these three problems from the musician/creator perspective:

1. Creators cannot make decisions about how their work is used

Under the proposed bill, copyright owners — usually the record label — have the right to approve or not approve of the use of a work, even if the original creator is locatable.

Suppose you work at an ad agency that wants to use a recording in a commercial. The copyright owner is not locatable, but the artist is. Under the pending bill, it’s not up to the creator to decide — it’s up to the copyright owner, and the copyright owner ONLY. Unlike other countries, in the US, the creator doesn’t have a “moral right” to object to how their work is used.

As drafted, the current legislation would not only give creators no decision-making power in the absence of a copyright owner, it would also override any original contract terms that state that the copyright owner needs to get the artist’s approval before permission to use the work is granted.

2. Creators might not receive compensation

Moreover, despite payment obligations set forth in the contract that the creator made with the copyright holder, the new user might not have to pay the songwriter/performer until and unless the copyright owner brings an action or licenses the work. In addition, even in circumstances where the creator could collect damages, the proposed bill limits those damages, even in the case where the creator objected to the infringing use in advance.

3. Creators are not given attribution

Furthermore the proposed bill, unlike previous versions, only requires attribution of the copyright owner and not the author. The author created the work and deserves attribution.

Let’s be clear: orphan works is a problem that should have a legislative solution. FMC supports orphan works legislation that would make more older works available and supports changes to the copyright law that would limit liability for those who undertake and document “a qualifying search, in good faith” to find the copyright owner (under the proposed legislation, the Copyright Office will determine what a qualifying search is. Musicians should help the Copyright Office craft best practices to ensure that such qualifying search is as thorough as possible).

However, FMC firmly believes that any legislation to address the orphan works problem give the creator the same rights as the copyright owner of the orphaned work would have to license or refuse to license the use of the work, and to be paid for the use. Only then will we have a fair way to deal with an important part of our collective culture.