‘Orphan’ Estranged From ‘Copyright Parents’ Forever?

Filmmakers, songwriters, and publishers often face frustration and “brick walls” when seeking to find owners of copyrighted works in order to get permission to use them. In many cases, despite best efforts, creators and their heirs may be unlocatable. This puts filmmakers and others in the precarious position of deciding whether to use the work and risk a copyright infringement lawsuit, or abandon the work, perhaps forever. Stories are legion of documentary film projects abandonned after years of effort all because copyright holders could not be located.

Deemed “orphan works” because it’s unclear who the “parents” are, the challenge of locating owners of copyrighted material has become such a large problem that the U.S. Copyright Office has been asked by Congress to propose a solution. The new Copyright Office Report On Orphan Works is an articulate statement of the problem, the current law and some candidate solution paths. Click HERE for Copyright Orphan Works Report.

The solution, however, presents challenges of its own and, in fact, may be over-reaching in terms of denying rights and royalties to owners who deserve them. The solution, as recommended in the Orphan Work Report, is feared by many to be the ‘exception that swallows the rule’. Just as Canadian law currently imposes a compulsory license to the person who can document ‘good faith effort to locate’, the recommended legislation will provide low to no monetary damages and relief from injunctions against the resulting derivative work when attribution is given and there is a documented but failed ‘good faith effort to locate’.

While the ‘fair use’ defense is explicitly not affected by this possible change, it would moot the whole ‘fair use’ defense in many circumstances. This would be especially true in the graphic arts arena.



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