May 31, 2006

Orphan Works Revisited

It's been a while since I've weighed in on the exciting world of copyright and music, but that changes today. You may remember me discussing Orphan Works back in February 06, soon after the Copyright Office published its study on the abandoned ones. Last week, Congressman Lamar Smith introduced the "Orphan Works Act of 2006," legislation that slightly modifies the Copyright Office suggestions.

All in all, the powers that be seem cautiously optimistic about the bill. After the jump, I'll outline
1. What Orphan Works Are
2. Why Anyone Would Care
3. Why It's Important That We Do Something About Them
4. A Roundup of Experts' Comments on the new legislation

* section 1, 2, and 3 previously written for FMC.

** This also marks the first post that has a "jump" at all! Hit the button below!


1. What Are Orphan Works?
As a refresher, Orphan Works are copyrighted works whose owners are hard or impossible to find. They belong to someone, but it's hard to tell to whom. Many creative works fall into this category because (a) copyright protection arises without having to take any proactive measures and (b) the length of terms on copyright now extends for decades.

For example, if you snap a photo in your digital camera you automatically get copyright protection over that photo and if someone else wanted to use it they would need to identify and locate you to ask permission. For this reason, orphan works probably comprise the majority of the creative works of 20th century. Orphan works exist in a purgatory of sorts, not able to be used in new creative efforts or made available to the public due to uncertainty over their copyright status. Oftentimes the cost of finding the owner is so high that creators can't use orphan works in their new work, even when they'd be willing to pay to use them. In many cases the works are abandoned because they no longer produce any income but rights holders, once found, are usually delighted to have their work used.

2. Why Should We Care About Orphan Works?
How Orphan Works Impact Creators and Presenters
Imagine you are a musician who is recording a new album to be released next year. You remember hearing a great piece of music at your friend's house and decide that a sample of it placed into one of your new songs would add just the right vibe. You know that you're supposed to "clear" all your samples, but you've checked with Harry Fox, ASCAP, BMI, SESAC, the US Copyright Office, SoundExchange and the internet without being able to find out who owns the copyright to this recording. What do you do? Can you still use the sample?

Making a Reasonable Effort to Find the Copyright Owner
Copyright law requires that you gain permission to use someone else's work, so it's important to keep track of the samples you use. Recent court cases have all but erased a fair use argument for samples (Bridgeport v Dimension Films and Grand Upright v Warner), so even if you want to use a tiny snippet you should clear the work. This means you'll have to both identify and locate the copyright owner of the piece of music you want to use in your new song. Can you answer the following questions?
(a) What is the title of the original record?
(b) What is the name of the recording artist?
(c) What is the name and address of the record company?
(d) What is the name and address of the music publisher?
(e) What is the length and content of the sample?

If not, you should search the databases of ASCAP, BMI, SESAC, SoundExchange, the US Copyright Office, and the internet for the answers. If you or your representatives are able to identify and locate the copyright owner, you can then work together on an agreement about the use of the sample in your song.

But what if you can’t find the owner?
If you have searched without being able to identify and locate the copyright owner, this song may be an orphan work. The music business is fluid and ownership of any given song might pass through many hands over a short period of time because of legal contracts and record label mergers and acquisitions. If the song you want to sample is an orphan work, there is currently no way for you to legally use the song.

3. Why is it important and what is being done to fix this scenario?
Creators are often forced to abandon projects that include orphan works. This is not only a loss for creative artists, but also for the public and our collective culture. Fortunately, in 2005, the US Copyright Office began examining issues raised by orphan works. The Office asked whether there are compelling concerns raised by orphan works that merit a legislative, regulatory, or other solution and if so, what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and rights holders. The Copyright Office received hundreds of comments in this proceeding, which was followed up by roundtable discussions in Washington, DC and Berkeley, CA, and the introduction of the Orphan Works Act of 2006 in May 2006.

A recent report underscores the importance of this issue. An August 2005 report, Survey of Reissues of U.S. Recordings, found that most US historical sound recordings have become virtually inaccessible—available neither commercially nor in the public domain. According to the report, the rights to 84 percent of historically significant recordings made in the United States between 1890 and 1964 are still owned by someone and are therefore protected by law. Yet rights holders have reissued—or allowed others to reissue—on CD only 14 percent of the pre-1965 recordings they control. Thus, most historically important sound recordings are available for hearing only through private collectors or at research libraries that have the equipment to play obsolete, often-frail recordings.

4. A Roundup of Experts' Comments on the new legislation
Lamar Smith's Bill was marked up in House subcommittee last week. Here's what the experts have to say:

Public Knowledge: A succinct and informative analysis of the bill followed by the argument that a specific cap on damages available to "found" copyright holders would be better than the bill's language for "reasonableness."

Siva: The king of "Critical Information Studies" cites the bill as good but not great, and encourages Congress to take it seriously.

Matt McKenzie: Discusses the idea that we've got so many orphaned works because copyright protection is automatic.

Patrick Ross: Evaluates the negative aspects of the bill for visual artists.

William Patry: Analyzes and bill section by section and gives a hats off to Smith and the subcommittee for undertaking the legislation and keeping the process open.

Joe Gratz: Provides a detailed analysis of the bill and calls it "great" but for its dubious sunset clause (just the clause that Patrick Ross is in favor of to protect visual artists).

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