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.