Wednesday, May 7, 2008

Orphan Works

Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don't place on this register will become "orphan works" that anybody can use without your permission? I'm so glad you asked. The answers to your questions are "maybe," and "not exactly." An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can't be found and the publisher doesn't want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher -- after performing a diligent search -- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their "good faith" search for the owner, (2) file a "Notice of Use" with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special "orphan works" symbol when the work is published.

Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They're worried that if a piece of artwork doesn't show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there's nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan ... since the artist and his work are easy to locate on the web (Steve, please don't sue).