The Business of Creativity

Houchin Consulting PLLC

Orphan Works Discussion Challenge

Posted on | September 22, 2006 | 2 Comments

I’ve been researching the topic of the proposed change to the copyright law regarding orphan works. I’ve been debating the issue via email with a few artists and I’ve boiled my thoughts down to the following 3 points.

  1. Relative to truly orphaned works, the law makes things better.
  2. Relative to works that get mistakenly classified as orphaned works, which shouldn’t happen very often except in the case of unregistered works, the practical situation won’t get any worse.
  3. Relative to the creation and use of copyrighted works generally, the law might provide incentive for tools and registries that actually make things better for everyone.

I’m not “set” in these positions yet, and I’d really like to hear from YOU about your thoughts. Challenge me, call me a “bone-head”, or maybe even agree with me. I’d really love to fine tune my understanding of the issues and share that understanding as it develops.

Post your comments by clicking the comment link at in the header of this post.


2 Responses to “Orphan Works Discussion Challenge”

  1. pam luer
    September 23rd, 2006 @ 9:40 am

    The Orphan Works provision constitues a loophole that will jeopardize the copyrights of thousands of artists, and do so retroactively. All work published will be subject to orphan works claims. I see no practical way that I could monitor potential infrigement of my work. My creative work is my livelyhood and my copyright is my private property that I sell. Which wouldn’t exisit without the specific expression of my experience. Nothing in the Orphan Works Report justifies the exploitation of my private property by others. Several times the Orphan Works Report unvalidated assertions are mde that orphan works has little or no commercial value. This is contrary to my entire professional experience. I license my copyright for a living. This is a terrible set back to all of us who create for a living. I believe the legislation would allow the kidnapping of millions of valuable copyrights that cannot otherwise be distinquished from true orphaned works, allowing an open door to the cultural theft on an unprecedented scale.

    Seriously, as a representative of creatives, you think this is a good thing?

    Welcome your thoughts.

  2. Kevin Houchin
    September 23rd, 2006 @ 12:57 pm


    Thanks for the passionate response. This is exactly the type of input and debate I was hoping to generate. Let me outline my thoughts more fully.

    1. There are a great many pieces of truly orphaned works out there.
    2. Getting those legitimate orphaned works back into circulation will benefit society and cultural growth.

    You correctly state that all work will be subject to the claim that it was orphaned. Next you correctly state that you will not be able to monitor infringement of you’re work. All your points about the value of your work and your right to make a living by licensing your work are completely valid and true.

    I am still unconvinced that the legislation will allow the “kidnapping” of your work and the work of others – at least the legislation will not make things any worse than they are today, and might provide incentive for things to get better.

    Here’s why: the law will require potential users of creative works to at least conduct a “reasonable good-faith search,” which, in my opinion is very likely to find the creator of the work, especially works registered with the copyright office.

    Obviously, not all works are registered with the copyright office. I have two responses to that issue, first that anything that provides more incentive for artists to register their work with the copyright office is a good thing. Second, I think companies like Google will offer low- or no-cost registries for work with the simple goal of making every reasonable good-faith search successful. One important thing to note is that this law puts the burden of finding the creator of a work on the potential user. I think this will actually lessen the amount of work you have to do to police potential infringement, but again even if your burden isn’t reduced, the law doesn’t make it worse.

    On the subject of unregistered work, most artists can’t economically justify the litigation costs to enforce their rights under the current law. The only thing on the table is “actual damages” and each side has to pay their own attorney fees anyway. In practice, a litigation relative to an unregistered copyright ends up with effectively THE SAME “limited” damages available under the proposed legislation. NOTHING CHANGES in practice relative to unregistered works, and the law is very unlikely to mistakenly orphan registered works.

    It seams that many artists that are scared of the new legislation do not trust that courts will put teeth behind the requirement of “reasonable good-faith search” before the use of an allegedly orphaned work. I think differently, I think lawyers, judges, and juries might effectively set the requirements for reasonable good-faith searches too high.

    So, if I’m right and there is little change of a registered copyright being mistakenly labeled “orphaned” and that the practical issues relating to infringement of unregistered copyrights returns basically the same analysis and result under either the current law or the new law, then at worst things stay the same. At best they get better for the following reasons:

    1. Anything that motivates artists to register their copyright (either as individual works or in sets of works) is a good thing for everyone.
    2. The business practices that should be implemented to make sure your work is not “orphaned” is simply good marketing, which is good for artists.
    3. The technology and services that will spring up as a result of the legislation will aid artists and potential users a great deal.

    I’m still open to debate – especially and example of an infringement action relative to an unregistered work that would turn out significantly different under the new law that it would today.

    Let’s keep the debate open.

    My sincere thanks for your participation!


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