“Orphan Works”: Copyright Victims that Never will Be Adopted
Suppose that you are willing to pay for a license to reproduce a copyrighted work, but you have no way to contact the owner of the copyright – perhaps, even, no way to identify who the owner is.
The resulting uncertainty leaves you with two unattractive alternatives: Either abandon your nascent business idea, depriving yourself of revenue and depriving potential customers of a valuable product, or proceed, always fearful that the copyright owner might appear from nowhere and bring a suit for copyright infringement.
This problem was created by the Copyright Act of 1976, which took effect on January 1, 1978. The Act removed the requirement that a copyrighted work be registered with the U.S. Copyright Office; instead, copyright subsists in a work as soon as it is reduced to a tangible medium of expression.
As a result, orphan works are a constant problem. Legislative efforts to provide a remedy have failed.
Sometimes there is a work-around, such as fair use or using another work for which the copyright owner can be located. But way too often, the orphan works problem smacks us right in the face, and there is nothing we can do about it.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Dana Shultz is a business-savvy lawyer located in Northern California's San Francisco Bay Area (in the East Bay, near Oakland) who has in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.