Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences (Part Two)

As discussed in The Fundamentals of Copyright and the Problem with Lost Owners (Part One) the exclusive rights of copyright attach automatically to a work, whether a photograph or a poem, once it has been transposed into tangible form. However, for works created before 1978, authors and artists had to take affirmative steps to secure the copyright in their works. They also had to notify the public through the use of the (c) symbol or other notice that copyright had been claimed.

Since 1978, registration has been optional for authors and creators.  Registration provides a few additional, yet significant, benefits. Registration is required prior to filing a lawsuit for infringement, or other issue. A registered work is entitled to greater awards of damages than non-registered works. However, creators often choose not to register their works because it is expensive and its value is not obvious.

Also, the requirement that works for which copyright protection has been claimed be marked with some kind of notice to the public was abandoned in 1988 when the United States became a party to the Berne Convention for the Protection of Literary and Artistic Works. Therefore, for the past 20 years everyone from illustrators to songwriters could publish their works without including the (c) symbol or other notice.

As time has passed, creators and/or copyright owners of many works have been lost leaving many works without parents. The copyright registrations may not have been kept up to date to reflect change in ownership or contact information. Modern works for which registration is not required may not have been marked clearly or efficiently to provide third parties notice as to whom the creator and/or owner is. Such works are commonly referred to as Orphan Works.

Significantly the exclusive rights of copyright still apply to Orphan Works. Unlike with real property, there is no such thing as an abandoned copyright. Therefore, publishers, filmmakers and other third parties are wary to use an Orphan Work for fear that a parent might emerge to reclaim the copyright, and claim infringement which could result in monetary or injunctive relief.

Orphan Works are the unintended consequence of automatic copyright without formalities. It is doubtful that Victor Hugo, a driving force behind the Berne Convention, could have predicted the vast array of works to which copyright would apply by the end of the 20th Century, or the plethora of platforms through which such works can be delivered and used. Nor, one would think, could anybody anticipate the impact the fear of being sued for copyright infringement would have on end users.

In January 2005 Congress charged the Copyright Office of the Library of Congress to review the Orphan Work problem and propose statutory language. The Copyright Office issued its report a year later which outlines that yes there is an Orphan Works problem. The statutory language they proposed, however, left much to be desired so Congress reclaimed the project. The “Orphan Works Act of 2006” was eventually included in the “Copyright Modernization Act of 2006” which did not become law.

Congress has revisited the problem of the Orphan Work many times since the initial report was filed.  Unfortunately, they have not been able to resolve it so creators, copyright owners and insurance companies remain trapped in a gray area.

About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.
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