Deconstructing “Orphan Works”

By Jacqueline Crispino.

When Cornell University Library attempted to digitize 343 “in-copyright but out-of-print monographs” in 2005, the project staff reported that they were able to locate only half of the rightsholders.^[1] Unfortunately, it is quite common in the United States and Europe to find that many works of art, whether photographs, articles, or works of fine art, do not have readily known creators, also known as “orphan works.” In fact, many libraries and archives experience the same frustrations when they attempt to digitize their collections. Anyone from filmmakers to professors who would like to use an image or text which is ultimately found not to have a known author or rightsholder might be reluctant to use that work for fear of infringing copyright. Thus, ownerless, orphan works have the potential to deny communities access to knowledge and encourage infringement of copyright laws.^[2] As Maria Pallante, former Director of the U.S. Copyright Office and the current president and CEO of the Association of American Publishers, says, “it is not a good policy to protect a copyright when there is no evidence of a copyright owner.”^[3] If both are true, what can consumers, artists, or anyone else do when they want to use an orphan work, and what are some possible solutions to orphan works in the future?

What Are Orphan Works?

According to the U.S. copyright office, the official definition of an orphan work is “any original work of authorship for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law.”^[4] The case of Authors Guild, Inc. v. Hathitrust further defines an orphan work as one that is out-of-print.^[5] One example of an orphan works collection is the vinyl catalog of forgotten country music artist Billy Mize. His grandson, William J. Saunders, wanted to use his music for a documentary, but was unable to identify the rightsholders of the music because many of the record companies that originally owned the rights no longer exist.^[6]