This post is about a frustration in U.S. copyright law: orphan works.
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. You may not even be able to identify who the owner is. (See Copyright Office Circular 22, How to Investigate the Copyright Status of a Work.)
The resulting uncertainty leaves you with two unattractive alternatives. You can abandon your nascent business idea, depriving yourself of revenue and depriving potential customers of a valuable product. Or you can proceed with your plans, 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.
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.