Western New England Law Review Volume 34 34 (2012) Article 10 Issue 2

4-1-2012 COPYRIGHT—DON’T FORGET ABOUT THE ORPHANS: A LOOK AT A (BETTER) LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM Laura N. Bradrick

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Recommended Citation Laura N. Bradrick, COPYRIGHT—DON’T FORGET ABOUT THE ORPHANS: A LOOK AT A (BETTER) LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM, 34 W. New Eng. L. Rev. 537 (2012), http://digitalcommons.law.wne.edu/ lawreview/vol34/iss2/10

This Note is brought to you for free and open access by the Law Review & Student Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Western New England Law Review by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. 32073-wne_34-2 Sheet No. 103 Side A 08/21/2012 07:54:18 R R R R R R , OOK ORKS W , A.B.A. J., : A L 5-JUN-12 12:32 At the time 4 Savory Collection RPHAN O RPHANS note 1, at 48-49. Unfortunately, be­ 6 O Seq: 1 Seq: note 1, at 48. containing recordings of 3 , Aug. 21, 2010, http://www.nytimes. supra note 1, at 48. note 1 at 48. IMES BOUT THE In order for listeners to hear an 7 A unknown 537 OLUTION TO THE , http://www.jazzmuseuminharlem.org/savory. , N.Y. T S note 4; Seidenberg, supra NOTES NOTES NTRODUCTION ARLEM ORGET I H F T ’ Steven Seidenberg, Orphaned Treasures: A Trove of His­ note 1, at 49. To hear audio samples, visit note 1, at 48.

ON EGISLATIVE note 1; Seidenberg, supra note 1; Seidenberg, supra William Savory’s son recently sold nearly 1,000 William Savory’s son recently USEUM IN supra supra see also http://www.nytimes.com/2010/08/17/arts/music/17 , Aug. 16, 2010, http://www.nytimes.com/2010/08/17/arts/music/17 2 ) L Free That Tenor Sax M supra supra IMES AZZ J ETTER L ’ Rohter, Editorial, Rohter, Free That Tenor Sax, supra Museum Acquires Storied Trove of Performances by Jazz Larry Rohter, Museum Acquires Storied Trove of Performances Seidenberg, Seidenberg, These jazz recordings were made by William Savory, an au­ were made by William Savory, These jazz recordings 5 AT , N.Y. T (B For the first time, jazz fans are able to listen to excerpts as the For the first time, jazz fans are able Coleman Hawkins, Lester Young, Billie Holiday, and Herschel Lester Young, Billie Holiday, Coleman Hawkins, 1 N 3. 4. 2. 7. 1. 6. 5. ROBLEM HE M K AT A jazz.html?_r=2&hp; But You Can’t Hear Them toric Recordings has Found a Home in Harlem, May 2011, at 48. these artists to the National Jazz Museum in Harlem. these artists to the National Jazz discs, known as the “Savory Collection,” com/2010/08/22/opinion/22sun3.html; Seidenberg, T php (last visited May 24, 2012). museum cleans up and digitizes the recordings. museum cleans up and digitizes the Evans are just a few of the jazz masters from the 1930s and 1940s to few of the jazz masters from the Evans are just a unheard record­ music scene with previously resurface onto today’s ings. COPYRIGHT—D P \\jciprod01\productn\W\WNE\34-2\WNE210.txt Greats of the recordings, only a few people had the opportunity to listen to of the recordings, only a few people them. cause of United States copyright laws, sound snippets are all listen­ cause of United States copyright ers will be able to hear for a while. entire song, the museum needs to obtain a license or some other entire song, the museum needs holder before distributing form of permission from the copyright dio engineer who recorded live performances from some of jazz’s recorded live performances from dio engineer who and kept the recordings in his pri­ greatest during that time period vate collection. C Y 32073-wne_34-2 Sheet No. 103 Side A 08/21/2012 07:54:18 A 08/21/2012 103 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 103 Side B 08/21/2012 07:54:18 R R R M K C Y 11 in

13 34:537 34:537 [Vol. . L. 294, 298 5-JUN-12 12:32 Free That Tenor ECH 1 (2006) [hereinafter . & T http://europa.eu/rapid/ CI ORKS Seq: 2 Seq: 12 Additionally, the cost Additionally, Many of the current Many of W

9 Id. 10 The orphan works prob­ The orphan works 14 RPHAN , 16 B.U. J. S O unknown http://www.copyright.gov/orphan/orphan-re­ EPORT ON note 4, (stating that “the estates of the musicians note 4, (stating that “the estates of the musicians , R available at , supra FFICE ], O note 1, at 49. second, it defeats the economic incentive to second, it defeats ORKS 15 supra W WESTERN WESTERN NEW ENGLAND LAW REVIEW Part III.A. OPYRIGHT For the museum, tracking down these copyright holders holders copyright these down tracking the museum, For RPHAN 8 O note 4. Revenue Streams and Safe Harbors: How Water Law Suggests a Joel Sage, Revenue Streams and Safe Harbors: How The prevalence of orphan works cannot be pinned down exactly.The prevalence of orphan works cannot be In Europe, U.S. C Id. Free That Tenor Sax See infra 17 U.S.C. §§ 106, 501(a) (2006).106, 17 U.S.C. §§ any of the exclusive “Anyone who violates Seidenberg, Orphan works create problems, albeit self-made problems, problems, albeit self-made Orphan works create These recordings and other protectable works under copyright under copyright protectable works and other These recordings 13. 8. 14. 12. 9. 10. 11. 15. , supra EPORT ON copyright law that are prevalent today. copyright law that port-full.pdf. Solution to Copyright’s Orphan Works Problem copyright holders are very difficult to find. holders are very copyright law whose copyright holders cannot be found are considered “or­ found are considered cannot be copyright holders law whose phaned.” United States Copy­ orphan work, as defined by the An where the “a term used to describe the situation right Office, is and located by work cannot be identified owner of a copyrighted in a manner that to make use of the work someone who wishes of the copyright owner.” requires permission 538 the music. \\jciprod01\productn\W\WNE\34-2\WNE210.txt rights of the copyright owners as provided by sections 106 through 122 . . . is an in­ rights of the copyright owners as provided fringer of the copyright . . . .”501(a). § Many of these copyright holders may be the that they hold a copyright. estates of the artists who may be unaware Sax R create copyrightable works because no one can receive the poten­ works because no one can create copyrightable cannot be found; and third, it tial royalty if the copyright owner is a daunting, potentially impossible task. potentially is a daunting, (2010) (noting that “orphan works are a natural outgrowth of copyright law’s robust (2010) (noting that “orphan works are a under current copyright law”). protections and arise from the lack of formalities The created “broad, automatic, and lengthy changes in copyright law over the years have problem. protection[s]” aggravating the orphan works prevalence of the issue.there has been an attempt to examine the one According to of the number of orphan works in source, “depending on the sector[,] . . . estimates the cultural institutions vary from around 20% for films and slightly less for books, at low end, to up to 90% for photography at the high end.” Vice-President Kroes, Neelie of the European Comm’n Responsible for the Digital Agenda, Addressing the Orphan Works Challenge at the IFRRO (The International Federation of Reproduction Rights and Organisations) launch of ARROW+ (Accessible Registries of Rights Information Orphan Works towards Europeana) (Mar. 10, 2011), available at of this search may be too expensive for the museum to undertake. expensive for the may be too of this search lem is threefold: first, it stifles creativity by limiting the public’s ac­ first, it stifles creativity by limiting lem is threefold: cess to the piece; . . . may be very difficult to track down after all these decades”). . . . may be very difficult to track down after pressReleasesAction.do?reference=SPEECH/11/163&format=HTML&aged=0&lan­ guage=EN&guiLanguage=en. 32073-wne_34-2 Sheet No. 103 Side B 08/21/2012 07:54:18 B 08/21/2012 103 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 104 Side A 08/21/2012 07:54:18 R R , 539 Free Senate NOWL­ RPHAN K O

(Sept. 29, In 2008, In 2008, Report on Senate Passes 5-JUN-12 12:32 16 UBLIC

MAGE , P I Congress has Congress EPORT ON Though the bill Though In its 18 17 20 BOUT THE Seq: 3 Seq: , A at 677. Id. unknown 19 Despite having more language, the House’s bill still lacked Id. note 4. (Sept. 30, 2008, 1:00 PM), http://www.publicknowledge.org/node/ note 12, at 2. Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 673 (S.D.N.Y. 2011) Authors Guild v. Google, Inc., 770 F. Supp. NOWLEDGE The standard laid out in the Senate’s version of the bill was considered im­ The standard laid out in the Senate’s version See The United States Copyright Office noted that “there is good evidence that The United States Copyright Office noted Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. (2008); Or­ Shawn Bentley Orphan Works Act of 2008, the bill passed in the Senate and On the last day of the Congressional term, supra , K The sole remedy for the orphan works problem is to create for the orphan works problem The sole remedy important reason the 2008 bill Congress should realize that an These problems will not be resolved soon, either. be resolved soon, will not These problems A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE (Apr. 24, 2008, 3:34 PM), http://www.publicknowledge.org/node/1537. Sen­ The 20. 19. 16. 17. 18. ORKS UBLIC M K language to provide enough protection for the copyright holder and the copyright user. language to provide enough protection for the copyright holder and the copyright user. Id. 1768. But it was pointed out that though the two bills are similar, they are not the same. Alex Curtis, Orphan Works 2008: House and Senate Bills Introduced EDGE _ 2008), http://www.abouttheimage.com/3900/senate_passes_orphan_works_bill_s2913 house_expected_to_follow/author2. part The House, however, did not pass the bill “in a corporate takeover of their rights.” because of objections by artists who feared That Tenor Sax, supra language.proved compared to previous “diligent search” Rashmi Rangnath, Passes the Shawn Bentley Orphan Works Act of 2008. Will the House Do the Same? P (rejecting the Amended Settlement Agreement as too broad in scope). (rejecting the Amended Settlement Agreement fur­ court The for exploiting unclaimed books is a mat­ ther notes, “the establishment of a mechanism ter more suited for Congress than this Court.” passed in the Senate, it did not pass in the House. did not pass in the the Senate, it passed in uniformly-applied legislation that fairly balances the interests of legislation that fairly balances uniformly-applied materials, those who want to use copyrighted copyright holders, as many creative access to and the availability of and the public’s works as possible. works issue, Congress needs To solve the orphan its enactment and resolve the issues that prevented to revisit the bill in 2008. surrounding what consti­ failed to become law was the uncertainty by the bill. tuted a “diligent search” as proscribed W 2012] 2012] to works users orphan some forcing law by copyright undermines to comply. despite efforts laws, violate infringement \\jciprod01\productn\W\WNE\34-2\WNE210.txt the orphan works problem is real and warrants attention.” the orphan works problem is real and R ate’s bill was referred to as the “clean version” while the House’s version had a lot more ate’s bill was referred to as the “clean version” while the House’s version had a lot more provisions and extras. phan Works Act of 2008, H.R. 5889, 110th Cong. (2008). phan Works Act of 2008, H.R. 5889, 110th was expected to pass in the House of Representatives. Brent Phelps, to Follow Orphan Works Bill (S2913), House Expected Congress proposed legislation in both the House of Representatives House of Representatives in both the proposed legislation Congress issue. the orphan works Senate regarding and the not attempted a reexamination of the orphan works problem, nor reexamination of the orphan works not attempted a the fears of those legislation that would address has it proposed passage originally.who opposed its job to resolve It is Congress’s issue. the orphan works C Y 32073-wne_34-2 Sheet No. 104 Side A 08/21/2012 07:54:18 A 08/21/2012 104 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 104 Side B 08/21/2012 07:54:18 R R M K I­ S­ C Y G A 34:537 34:537 [Vol. 5-JUN-12 12:32 If the term HYSICS AND

HOULDERS OF 25 P 23 S Such a general Such a 21 N THE ORKS OF ? Seq: 4 Seq: W REAT G note 12, at 9. OPYRIGHT HE C unknown : T supra This statement epitomizes intellec­ , 26 IANTS G HAT IS ORKS W W I. RPHAN O HOULDERS OF note 20 and accompanying text. , the Copyright Office suggested a very general stan­ general a very suggested Office Copyright , the WESTERN WESTERN NEW ENGLAND LAW REVIEW Part VI. Part VI. Parts V-VI. S N THE EPORT ON Creating new orphan works legislation that includes a more works legislation that includes Creating new orphan 725 (Stephen Hawking ed., 2002) [hereinafter O R See supra See infra See infra See infra O Congress can be aided in defining more specifically what it aided in defining more specifically Congress can be 24 22 Sir Isaac Newton said, “If I have seen farther, it is by standing Sir Isaac Newton said, “If I have Part I of this Note is an overview of the copyright system, out­ Part I of this Note is an overview ] (referring to a famous quote from Isaac Newton which is “[o]ften described as 21. 22. 23. 24. 25. 26. on the shoulders of giants.” comprehensive definition of “reasonably diligent search” is the only of “reasonably diligent comprehensive definition it would cre­ the orphan works problem, because way to deal with applied uniformly throughout the ate one set of laws that could be material. United States to all forms of copyrightable means to conduct a “diligent search” and how to prove that one a “diligent search” and how means to conduct of the law, such as by looking to other areas conducted the search of Evidence, and Code, the Federal Rules the Internal Revenue serving notice by court officers. case law regarding TRONOMY Newton’s nod to the scientific discoveries of Copernicus, Galileo, and Kepler before Newton’s nod to the scientific discoveries of Copernicus, Galileo, and Kepler before him”). “diligent search” were more specifically defined, the proposed leg­ were more specifically defined, “diligent search” chambers of Con­ more likely to pass in both islation would be gress. lining and detailing the history of copyright law, what is protected, lining and detailing the history of a copyright.and how one goes about obtaining Part II illustrates work becoming orphaned. factors that contribute to a copyrighted Office’s Report on Orphan Works Part III discusses the Copyright acts in 2008.from 2006 and Congress’s proposed Part IV examines did not pass in Congress. why the proposed acts in 2008 ultimately legislative action.Part V discusses alternatives to details Part VI diligent search. what it means to conduct a reasonably Part Finally, definition of the term, “rea­ VII is an application of the proposed to real world problems. sonably diligent search,” as applied 540 Works Orphan on a have been “applied which would the diligent search dard for needed a standard [was] that “[s]uch basis” and noted case-by-case as being uses identified of works and of the wide variety because issues.” orphan works subject to the potentially \\jciprod01\productn\W\WNE\34-2\WNE210.txt ANTS standard was not ideal, as it was the standard proposed in the 2008 proposed in it was the standard was not ideal, as standard bills. 32073-wne_34-2 Sheet No. 104 Side B 08/21/2012 07:54:18 B 08/21/2012 104 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 105 Side A 08/21/2012 07:54:18 R 30 541 5-JUN-12 12:32 Seq: 5 Seq: Copyright in 1791: An Essay In 1970, under the L.J. 909 (2003). 34 MORY Broad. Music, Inc., v. Columbia Broad. A “cornucopia of expressive of expressive A “cornucopia , 52 E unknown 27 The Founders recognized the impor­ Potential users may opt to wait until Potential users 33 31 . 123, 129 (2006) (noting that Congress has continued to . 123, 129 (2006) (noting that Congress has EV note 13, at 303. and United States intellectual property law at­ property States intellectual and United L. Ray Patterson & Craig Joyce, L. R 28 . art. I, § 8, cl. 8 (“Congress shall have Power . . . [t]o promote the ONST YRACUSE 17 U.S.C. § 106 (2006); see also 17 U.S.C. § Sage, supra 32 29 See copyright infringement can be as The statutory consequences for each willful 302(a) (2006) (“Copyright in a work . . . endures for a term con­ 17 U.S.C. § U.S. C See generally See Id. Copyright Benjamin T. Hickman, Can You Find a Home for This “Orphan” , 57 S Copyright History In most circumstances, the copyright holder can give a license the copyright holder can In most circumstances, The Copyright Clause can be found within the text of the The Copyright Clause can be A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 30. 31. 32. 33. 34. 27. 28. 29. M K riches” is created riches” is tance of protection for creative works and inventions, so they in­ tance of protection for creative cluded the clause in the Constitution. the work passes into the public domain, but they may be waiting a into the public domain, but they the work passes long time. tempts to balance the important goal of protecting the creators of the important goal of protecting tempts to balance benefit from their the goal of allowing society to these works with creations. recognize a need for “balance [between] the interests of those who want to use copy­ recognize a need for “balance [between] in the works”). right works . . . and those who own the rights advantages and necessities of licenses, and Sys., 441 U.S. 1, 20-22 (1979) (discussing the a reliable way for owners to protect the use how they give access to users while creating of their copyrights). high as $150,000.504(c)(2) (2006). 17 U.S.C. § sisting of the life of the author and 70 years after the author’s death.”). Progress of Science and useful Arts, by securing for limited Times to Authors and In­ Progress of Science and useful Arts, by securing for limited Times to Authors and ventors the exclusive Right to their respective Writings and Discoveries.”). I, Concerning the Founders’ View of the Copyright Power Granted to Congress in Article Section 8, Clause 8 of the U.S. Constitution to his rights and his work can be used and disseminated by others. his work can be used and disseminated to his rights and Without this license, any use is an infringement and unauthorized any use is an infringement Without this license, penalties. users face heavy A. United States Constitution. 2012] 2012] it has how and property, copyrightable especially property, tual throughout time.manifested independent, creativity can be Human inge­ is built off another’s something new often than not, but, more of works and inventions build off the greatest thinkers nuity; our them. came before those who \\jciprod01\productn\W\WNE\34-2\WNE210.txt Work? A Statutory Solution for Copyright-Protected Works Whose Owners Cannot Be Work? A Statutory Solution for Copyright-Protected Located Constitution’s grant of power, Congress enacted the first copyright Constitution’s grant of power, Congress over their works in order to law. This law gave authors a monopoly C Y 32073-wne_34-2 Sheet No. 105 Side A 08/21/2012 07:54:18 A 08/21/2012 105 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 105 Side B 08/21/2012 07:54:18 R R R R M K C Y OPY­ 34:537 34:537 EPORT C . 485, 493 , R OPYRIGHT . 33, 53-55 38 [Vol. EV 5-JUN-12 12:32 42 ROBS . L. R U.S. C § 1.03 (2006). § Furthermore, Furthermore, . P AMINSTEIN OLDSTEIN ON 37 36 TAN The formalities of formalities The , G L. K 35 ONTEMP , 57 S Seq: 6 Seq: OPYRIGHT Zechariah Chafee, Jr., Reflec­ C & C The Second Enclosure Movement . 503 (1945). OLDSTEIN EVISION OF THE BRAHAM AW function “of assuring a bal­ function “of assuring EV G R AUL IMMER ON , 66 L . L. R See generally unknown , N ENERAL Orphan Works, U.S. Copyright Law, and In­ Orphan Works, U.S. Copyright Law, and G . . L. 787, 792 (2006). The Copyright Act of 1790

OLUM , 306 U.S. at 48-49 (Black, J., dissenting). , 306 U.S. at 48-49 (Black, J., dissenting). IMMER OMP N , 45 C & C L ’ AVID note 35, at 793. note 29, at 129; P NT note 35, at 794. OPYRIGHTS ON & D C supra Thompson, supra In 1909, Congress made important revisions that made important revisions that In 1909, Congress . J. I supra WESTERN WESTERN NEW ENGLAND LAW REVIEW 39 RIZ IMMER , 23 A note 35, at 793. Congress continued to recognize the need to have a “bal­ Congress continued to recognize B. N EGISTER OF Christopher Sprigman, Reform(aliz)ing Copyright Act of May 31, 1790, ch. 15, 1 Stat. 124; A Act of Mar. 4, 1909, ch. 320, § 9, 35 Stat. 1075, 1077 (“[A]ny person entitled Act of Mar. 4, 1909, ch. 320, § 24-25, 35 Stat. at 1080-82. §§ Hickman, Washingtonian Publ’g Co. Thompson, Washingtonian Publ’g Co. v. Pearson, 306 U.S. 30, 43 (1939) (Black, J., dis­ Washingtonian Publ’g Co. v. Pearson, 306 See generally and extended the copyright renewal term to twenty-eight and extended the copyright renewal R 41 § 1.14 (3d ed. 2005). § Copyright holders receive a monopoly over a work for a The formalities did not last forever, though they stayed intact did not last forever, though they The formalities 40 intended to record publicly full and complete information about information about full and complete to record publicly intended to make that work is claimed and which copyright a work for that the ex­ for public inspection in order continuously available by the of the monopoly may be understood tent and boundaries during the life of the copyright. public at all times supra 39. 35. 40. 41. 42. 37. 38. 36. 3-6 (1961); Coree Thompson, Note, ELVILLE AW ternational Treaties: Reconciling Differences to Create a Brighter Future for Orphans ternational Treaties: Reconciling Differences Everywhere ance [between] the interests of those who want to use copyright ance [between] the interests of rights in the works.” works . . . and those who own the years. RIGHT (2003). over the years despite amendments in developing United States despite amendments in developing over the years copyright law. L These early formalities had the essential These early formalities 542 culture. and of learning expansion the promote public.” interests of the author and the ance between the \\jciprod01\productn\W\WNE\34-2\WNE210.txt OF THE provided federal copyright protection at the moment of publica­ copyright protection at the moment provided federal tion, emerged during a time when the majority of people and the courts championed free emerged during a time when the majority trade and wanted to limit monopolies. Boyle, James and the Construction of the Public Domain period of time, but eventually a work will enter the public domain, where the public will period of time, but eventually a work will enter the public domain, where the public have access to use, reproduce, and work off of the original without fear of penalty. M these formalities were these formalities the Act of 1790, such as registration, deposit, notice, and renewal, notice, and registration, deposit, of 1790, such as the Act held. monopoly authors to limit the were used (2004); Thompson, supra the thereto by this Act may secure copyright for his work by publication thereof with notice of copyright required by this Act . . . .”). tions on the Law of Copyright: I senting) (stating the statutory requirements “impose[d] a simple and easily performed senting) (stating the statutory requirements duty—not burdensome in any respect—in return for a [limited] monopoly”); Thomp­ son, 32073-wne_34-2 Sheet No. 105 Side B 08/21/2012 07:54:18 B 08/21/2012 105 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 106 Side A 08/21/2012 07:54:18 R R R R R R 543 In 44 5-JUN-12 12:32 Furthermore, 46 One of the most One of § 102(a). § note 35, at 798. 43 see These changes lead These changes ; Seq: 7 Seq: 48 Id. The formalities needed in the The formalities Thompson, supra 49 unknown § 102(a). § note 35, at 799. 47 note 35, at 795. Eldred v. Ashcroft, 537 U.S. 186, 241 (2003) (Stevens, J., dis­ Eldred v. Ashcroft, 537 U.S. 186, 241 (2003) note 13, at 297. Authors today “receive copyright protection the supra note 13, at 299. note 13, at 296; see

No. 10-545, 2012 WL 125436 (U.S. Jan. 18, 2012). see also supra supra supra Congress did away with these formalities as a way to gain Congress did away with these formalities The extensions of copyright terms mean that an orphan of copyright terms mean that The extensions Sage, 302(a); Thompson, supra § Sage, Sage, § 302; § 302(a).§ term There were other important changes for the extension of the Thompson, (2006); see also 302(a) 17 U.S.C. § a work specially ordered or commissioned for use as a contribution to (2) a work specially ordered or commissioned a work prepared by an employee within the scope of his or her em­ (1) a work prepared by an employee within 50 45 The 1976 Act also substantially changed copyright law in that it substantially changed copyright The 1976 Act also It was not until the Copyright Act of 1976 that copyright law in law copyright 1976 that Act of the Copyright not until It was A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 47. 48. 49. 50. 46. a collective work, as a part of a motion picture or other audiovisual work, as a a collective work, as a part of a motion picture compilation, as an instructional text, translation, as a supplementary work, as a as an atlas, if the parties expressly as a test, as answer material for a test, or that the work shall be considered agree in a written instrument signed by them a work made for hire. 45. ployment; or 43. 44. M K senting) (noting that “no copyrighted work created in the past 80 years has entered the senting) (noting that “no copyrighted work v. Holder, 609 F.3d 1076, 1095 (10th Cir. public domain or will do so until 2019”); Golan Act 514 of the Uruguay Round Agreement 2010) (upholding the constitutionality of § (URAA) which restores copyrights for thousands of foreign works, including those that had entered the public domain because of failure to adhere to formalities that have seen been repealed), aff’d moment their works are affixed in any tangible form.” work will remain unavailable for over a century. work will remain noteworthy changes to the Copyright Act of 1976 was that a single of 1976 was that Copyright Act changes to the noteworthy life. on the author’s based term was established copyright provided protection the moment a work was fixed in a tangible me­ the moment a work was fixed provided protection to having to be published. dium, as opposed the United States underwent significant changes. States underwent the United to the ease in obtaining copyrights because they “accrue practically copyrights because they to the ease in obtaining current law.” automatically under 2012] 2012] \\jciprod01\productn\W\WNE\34-2\WNE210.txt 17 U.S.C. § 101 (2006). 101 17 U.S.C. § of a copyrighted work. The copyright term for works made for hire were also extended first publication or 120 years from creation to the earlier of either ninety-five years after of the work.302(c). § Stat­ A “work made for hire” as defined by the U.S. Copyright ute is 1998, the Sonny Bono Copyright Term Extension Act (the “Sonny Act (the Term Extension Sonny Bono Copyright 1998, the twenty adding another Congress, thereby passed in Bono Act”) author plus fifty established life term of the years to the already years. this creates a presumption that the majority of works encountered that the majority of works this creates a presumption will be under copyright. past—registration, renewal, and notice—are no longer necessary today. C Y 32073-wne_34-2 Sheet No. 106 Side A 08/21/2012 07:54:18 A 08/21/2012 106 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 106 Side B 08/21/2012 07:54:18 R R R R R M K Y C Y ’ 55 54 OC 34:537 34:537 S [Vol. Since the Since . L.J. 265, 270 5-JUN-12 12:32 51 note 35, at 787­ U.S.A. 517, 518 OPYRIGHT ECH Y ’ T OC S Each modification Each modification , 49 J. C 53 Seq: 8 Seq: ERKELEY Act of Oct. 31, 1988, Pub. L. No. OPYRIGHT , 21 B See Olive Huang, U.S. Copyright Office Or­ , at 270;Thompson, supra , 55 J. C Kenneth D. Crews, Looking Ahead and unknown note 35, at 805. See

, at 270. One of the minimal rights required is Copyright Orphan Works: A Multi-Pronged Solu­ supra Huang, supra note 39, at 489; see note 13, at 298. supra WESTERN WESTERN NEW ENGLAND LAW REVIEW note 35, at 788-89 (footnotes omitted). Berne requires its signatories Joshua O. Mausner, Congress has modified the United States copyright the United States has modified Congress supra see 52 § 302(a). § ; supra Id. Sage, Sprigman, See Some of the modifications are clarifications or technical corrections and The amendments have created protections that obviously ben­ have created protections that obviously The amendments 55. 54. 51. 52. 53. [T]he Berne Convention . . . boasts at least 150 member countries . . . .[T]he Berne Convention . . . boasts at least [I]t is in these treaties to help shape the crucial for the United States to participate future of intellectual property policy. The United States exports a great deal of intellectual property. Technological advancements are increasing the fre­ quency and efficiency of that trade. However, with such advancements comes and interests of copyright hold­ a need to adapt U.S. laws to protect the rights ers both locally and globally. away [Therefore,] U.S. copyright law has shifted its copyright law meets the exact­ from its traditional structure to both ensure and to benefit from the protection ing requirements of international treaties offered by those treaties. statutes nearly fifty times since the Act of 1976, mostly in an at­ of 1976, mostly since the Act nearly fifty times statutes to international standards. tempt to conform (2008). tion to Solve a Harmful Market Inefficiency U.S.A. 549, 551 (2001); Thompson, supra For purposes of this Note, these “broad, automatic, and lengthy this Note, these “broad, automatic, For purposes of problem.” ] the orphan works . . exacerbate[ protection[s] . a work to become law have made it easy for Changes in copyright legally protected. or institution Problems arise when an individual 544 Berne Convention. of the member a and become access \\jciprod01\productn\W\WNE\34-2\WNE210.txt phan Works Inquiry: Finding Homes for the Orphans phan Works Inquiry: Finding Homes for the others are extensions of existing laws. Shaping the Future: Provoking Change in Copyright Law protection for author’s for fifty years, and that “[t]he enjoyment and the exercise of protection for author’s for fifty years, and [copyright] shall not be subject to any formality.” Berne Convention for the Protection Sept. 9, 1886, revised in Paris July 24, 1971, of Literary and Artistic Works art. 5(2), 1980 U.N.T.S. 31, 35. to provide some minimal rights while treating a foreign rights holder the same as a to provide some minimal rights while treating domestic rights holder. Huang, Thompson, (2006). The Berne treaty is the basis for the majority of international copyright law, market was the way of the future, they en­ and once Congress realized that the global Act. acted the Berne Convention Implementation 100-568, 102 Stat. 2853; see also 89. adopting the Berne Convention: Thompson explains the reasoning behind Berne Convention Implementation Act’s passage, Congress has passage, Congress Act’s Implementation Berne Convention easier has made it even Convention and the Berne fully embraced it for a and retain both acquire a copyright holder to for a copyright long time. has continued to erode copyright formalities. has continued to caused problems. yet at the same time have efit copyright holders, 32073-wne_34-2 Sheet No. 106 Side B 08/21/2012 07:54:18 B 08/21/2012 106 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 107 Side A 08/21/2012 07:54:18 R R 545 supra The 57 5-JUN-12 12:32 Furthermore, regis­ Seq: 9 Seq:

59 Since formalities are no Since formalities 58 61 note 12, at 15-16. 56 unknown 17 U.S.C. §§ 303, 304 (2006) (discussing the 17 U.S.C. §§ supra , ORKS W A copyright holder is given exclusive rights, A copyright holder is given exclusive See generally 62 RPHAN O ” be placed on copies or phonorecords). to incentives still are There EPORT ON For example, “copyrights may belong to corporate entities that go out of busi­ For example, “copyrights may belong to corporate R 17 U.S.C. §§ 102, 302 (2006) (which apply to works created on or after Janu­ 102, 302 (2006) (which apply to works created on or after 17 U.S.C. §§ 17 U.S.C. § 408(a) (2006) (regarding the “permissive” registration provision). 17 U.S.C. § be made by “the owner 407(a) (2006) (stating that deposit “shall” 106, 501(a) (2006). 17 U.S.C. §§ 17 U.S.C. §§ 401(a), 402(a) (2006) (emphasis added) (stating that the copy­ 17 U.S.C. §§ Deposit with the Library of Congress is considered Deposit with the Library of Copyright will still be granted to an original piece of work re­ Copyright will still be granted to The Copyright Office acknowledged in its Report that when its Report that in Office acknowledged The Copyright A copyright arises whenever a creator puts an original work whenever a creator puts an A copyright arises A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 60 Obtaining a Copyright Obtaining a Copyright 56. 57. 58. 60. 61. 62. 59. M K mandatory for published works, but noncompliance does not mean mandatory for published works, instead, the Copyright Office may that copyright will be forfeited; owner. levy fines against the copyright gardless of whether a copyright owner gives notice, registers the gardless of whether a copyright copy with the Library of Congress. copyrighted work, or deposits a is protected from attempts to in­ The owner of the copyright then fringe on that right. copyright law was being revised and amended, concerns were raised concerns were revised and amended, law was being copyright works holders for older copyright problems of locating about the commercial value.with low in finding the difficulty Additionally, work. could stifle the use of a copyrighted copyright holders tration is no longer required as a condition to copyright protec­ tration is no longer required as tion. 2012] 2012] the copyright locate cannot work but the copyrighted to use wants to do so. gain permission holder to \\jciprod01\productn\W\WNE\34-2\WNE210.txt longer required, a copyright owner does not necessarily have to dis­ longer required, a copyright owner i.e., the notice requirement is no close who owns the copyright, protection. longer a prerequisite to copyright ness, leaving no means of identifying the successor of the copyrights.”ness, leaving no means of identifying the Huang, note 51, at 271. into a fixed medium, whether it is published or not, and lasts until whether it is published or into a fixed medium, the author’s death. seventy years after orphan works problem began when the formalities of the Copyright began when the formalities orphan works problem done away with Act of 1909 were fur­ exacerbated was issue The terms. continued to expand copyright ther as Congress B. ary 1, 1978). If a work was created before that date, copyright duration can be more complicated to determine. right notice “may the copyright owner if there is notice on published works. 407(d). of copyright or of the exclusive right of publication”); § term of copyrights for works created but not published or copyrighted before January 1, term of copyrights for works created but not published or copyrighted before January 1978 and to works in their first term on January 1, 1978). C Y 32073-wne_34-2 Sheet No. 107 Side A 08/21/2012 07:54:18 A 08/21/2012 107 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 107 Side B 08/21/2012 07:54:18 R M K C Y 67 34:537 34:537 available [Vol. 5-JUN-12 12:32 A potential . . . permission to RPHAN 69 .” Letter from Jef­ O compulsory li­ compulsory 65 Seq: 10 Seq: ITTLE , L OW N by an internationally known architectural WN unknown O educational use, educational photograph but would not give 64 OUR Y note 35, at 809 n.162 (citing 17 U.S.C. §§ 111-12 (2006) and Failure to secure a copyright owner’s permis­ Failure to secure 68 RE ON supra ’ WESTERN WESTERN NEW ENGLAND LAW REVIEW OU Y and other uses intrinsic to executing licensed activities. to executing licensed uses intrinsic and other 17 U.S.C. § 501 (2006). 501 17 U.S.C. § when the Register was still writ­ In its comments to the Register of Copyright 17 U.S.C. § 107 (2006). 107 17 U.S.C. § (2006). 108(c) 17 U.S.C. § (2006). 110 17 U.S.C. § (2006). 115 17 U.S.C. § Thompson, since they did not own the painting. Nor did they (or would they) . . . help on II. specific photos of architectural works 66 preservation efforts, preservation The changes to the United States’ copyright laws have affected United States’ copyright laws The changes to the to find information on the To begin, a potential user needs If a potential users of a copyrighted work are able to circum­ copyrighted work users of a If a potential 63 68. 69. 63. 64. 65. 66. 67. http://www.copyright.gov/orphan/comments/OW0647-CAA.pdf. In another example,

sion to use a work results in infringement. sion to use a work censes, all aspects of copyright users, not just orphan works users. users, not just orphan all aspects of copyright But to the orphan problem. there are other factors contributing situations where information re­ work itself, though there are many owner is minimal. garding the author or the copyright vent some of the limitations on copyright, they do not have to they do not on copyright, of the limitations vent some to use the copyright owner from the getting permission worry about work. fall within one of the if potential users do not Conversely, 501 of the copyright stat­ inference from § limitations, the negative the copyright permission in some form from ute suggests getting holder is required. 546 fair for exceptions including some limitations to are subject which use, \\jciprod01\productn\W\WNE\34-2\WNE210.txt stating, “From their inception, the scope of the exceptions has been unclear.”).stating, “From their inception, the scope of A fur­ which states that the exclusive right to sell or ther limitation is the First Sale Doctrine, one copy and exerts no restriction on the distribute “is confined to the first sale of any future sale of that copy.”F. Supp. 717, 718 Fawcett Publ’ns v. Elliot Pub. Co., 46 (S.D.N.Y. 1942). Essentially, if individuals buy a copyrighted books, they can then sell any exclusive right of the copyright that book and not have to worry about violating owner. Art Association described different types ing the Report on Orphan Works, the College encountered in identifying clearing rights. of works and users and the difficulties it member, Leslie Humm Cormier, Some examples were that a College Art Association “needed publish it firm. firm’s The living partner of the firm could not authorize use of photographs of the own work (the buildings) because the photographer was unlocatable at the Wendy Katz, an Associate Professor in the Department of Art and Art History at the University of Nebraska-Lincoln told the College Art Association, who then related information to the Copyright Office, that she “wanted to publish an artwork by a 19th century artist. The [museum] has a frey P. Cunard, Counsel, Coll. Art Ass’n, to Jule Sigall, Assoc. Register for Policy & frey P. Cunard, Counsel, Coll. Art Ass’n, to Jule Sigall, Assoc. Register for Policy Int’l Affairs, U.S. Copyright Office, at 9 (Mar. 25, 2005) (emphasis in original), 32073-wne_34-2 Sheet No. 107 Side B 08/21/2012 07:54:18 B 08/21/2012 107 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 108 Side A 08/21/2012 07:54:18 R R R R R , N­ 547 , I OPY­

, http://www. , U.S. C 5-JUN-12 12:32 . . . . the When , http://www.copy FFICE Roundtable Tran­ O Tarnation (2003) FFICE ), pieced-together ), pieced-together note 12, at 23. O 72 , http://www.copyright.gov/ Seq: 11 Seq: at 16 & n.34 (emphasis and they claimed they didn’t own it supra OPYRIGHT FFICE Id. O .” OPYRIGHT ORKS , U.S. C W note 12, at 23. of exam­ For a plethora

note 12, at 24. The Report notes that the

then these artists would be pre- then these artists , U.S. C unknown OPYRIGHT 74 RPHAN supra Orphan Works Reply Comments supra , , O . She was unwilling to show the film without the , U.S. C Roundtable Transcripts (7/27/05), Washington, D.C. Roundtable Transcripts (7/27/05), Washington, ORKS ORKS W W ), or republication of out-of-print books may ), or republication EPORT ON , http://www.imdb.com/title/tt0390538/ (last visited May 24, 73 ; , http://www.copyright.gov/orphan/transcript/0726LOC.PDF at 11-12 (emphasis in original). With regard to trying to find

RPHAN RPHAN Id. O O FFICE note 51, at 275. Id. is a documentary film, put together with photographs, answering- is a documentary film, put together with note 110 and accompanying text. ATABASE O D /; , http://www.copyright.gov/orphan/comments/reply Transcripts: (8/2/05) Berkeley, Calif. Copyright notice can be an effective tool in providing in­ an effective tool notice can be Copyright EPORT ON EPORT ON OVIE 17 U.S.C. § 107 (2006) sets out four factors to be considered in determining 107 (2006) sets out four factors to be considered in determining 17 U.S.C. § R Tarnation See infra R Non-use of the orphan work stifles creativity in many ways. orphan work stifles creativity in Non-use of the FFICE (2) the nature of the copyrighted work; (1) the purpose and character of the use, including whether such use is of 70 M OPYRIGHT O 71 See Orphan Works Initial Comments A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 74. a commercial nature or is for nonprofit educational purposes; 71. 73. 72. 70. M K to ascertain the relevant factors in deciding whether to exploit the whether to factors in deciding the relevant to ascertain U.S. C films (e.g., Tarnation formation about the owner of a copyright, but when there is no but when there of a copyright, about the owner formation user is works, a potential involving orphan in most cases notice, as work not being that will likely result in the faced with an obstacle used. New forms of mash-up music (e.g., Girl Talk New forms of mash-up 2012); Huang, supra whether or not a particular use is fair: RIGHT copyright.gov/orphan/transcript/0802LOC.PDF. copyright.gov/orphan/transcript/0802LOC.PDF. right.gov/orphan/comments/index.html; TERNET ples of the difficulties and inabilities of people and institutions trying to find copyright ples of the difficulties and inabilities of people to the Register of Copyright and the owners, one can look to the comments submitted held while the Register was drafting its Re­ transcripts of the Round Table discussions port. who the owner was.” who the owner was.” alterations in original). These are just a few examples, but the Register of Copyright also many more in the letter from the noted there were many more, as there were College Art Association. R 2012] 2012] on circumstan­ “rely try to must then a name find who cannot user information—totial or contextual that any is available— the extent work.” related the expe­ of a motion picture, the College Art Association the copyright holder Media Cataloger at the Stanford University rience of Greta de Groat, an Electronic Libraries, that while attending “a public screening of a film [from 1924] permission, director called [a major distributor] to obtain \\jciprod01\productn\W\WNE\34-2\WNE210.txt so therefore could not give permission proper permissions, so was forced to pull the film orphan/transcript/0726LOC.PDF; Roundtable obstacle of finding information on a copyright is most pervasive with visual art, specifi­ obstacle of finding information on a copyright cally photographs. of individual interviews, and more, by machine messages, home videos, footage Jonathan Caouette on his life with his schizophrenic mother. scripts: (7/26/05) Washington, D.C. never come to fruition.the artist wanted to put If the pieces that the level of protec­ something new did not rise to together to create use doctrine, tion under the fair C Y 32073-wne_34-2 Sheet No. 108 Side A 08/21/2012 07:54:18 A 08/21/2012 108 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 108 Side B 08/21/2012 07:54:18 R R R M K C Y 34:537 34:537 note 12, at [Vol. 5-JUN-12 12:32 supra , http://www.copyright. ORKS noted that “even if an W The Copyright Office The Copyright Office Seq: 12 Seq: ORKS 77 W RPHAN available at O Due to events which have Due to events RPHAN 76 note 12, at 26. O unknown EPORT ON supra , EPORT ON ORKS W http://www.copyright.gov/orphan/comments/OW0555-Buck. 75 RPHAN copyright holder. at 26-27. this point, in a comment to the To further illustrate

O WESTERN WESTERN NEW ENGLAND LAW REVIEW note 79 and accompanying text. EPORT ON The Report noted that “[c]opyright is, after all, a form of property” and like The Report noted that “[c]opyright is, after See infra R The Copyright Office’s R the effect of the use upon the potential market for or value of the upon the potential market for or value (4) the effect of the use the amount and substantiality of the portion used in relation to the of the portion used in relation (3) the amount and substantiality

Id. Even if an author or copyright holder is identifiable from a or copyright holder is identifiable Even if an author 77. 75. copyrighted work. copyrighted work as a whole; and copyrighted work as 76. 26-27. occurred since the creation of the copyrighted work, the copyright creation of the copyrighted work, occurred since the identified on the work. holder is not always copy of a work, it does not necessarily mean that the person identi­ it does not necessarily mean that copy of a work, fied is the current 548 the public. new to giving something from vented creativity Artists’ the benefit of would not have and the public would suffer access to works.more creative Copyright Of­ United States As noted by the absence confronted by the Works, “when on Orphan fice’s Report simply do most users the work’s owner, information about of clear the work.” not use \\jciprod01\productn\W\WNE\34-2\WNE210.txt § 107. “other forms of property, ownership may pass through many hands, and by various “other forms of property, ownership may legal mechanisms.” Id. at the Library of Congress from 1958 to Register of Copyright, Paul Spehr, who worked that “[t]he continual changes in ownership 1993 in the Motion Picture Section, stated companies” caused several problems.and management of the major Hollywood Letter for Policy & Int’l Affairs, U.S. Copyright from Paul Spehr to Jule Sigall, Assoc. Register Spehr”], Office (2005), [hereinafter “Letter from Paul author or copyright owner can be identified . . . events since the creation of that copy author or copyright owner can be identified to identify or locate the current copyright can affect the ability of a subsequent user owner. gov/orphan/comments/OW0516-Spehr.pdf. have The names of movie companies and furthermore, when copyright owner­ changed since the 1910s, causing confusion, from one company to another.ship is transferred, blocks of films are sold from Letter Paul Spehr. in This process often resulted in some films being destroyed or diminished quality. Letter from Paul Spehr. of a To remedy this, he “believe[s] that the ownership responsibility to maintain and protect it,” copyrighted work should bear with it the preservation of creative works, but fewer or­ which would lead not only to the proper phan works. Letter from Paul Spehr. Another commentator to the Register of Copy­ writing a book on local history” and stated right, Dennis Buck, was “in the process of and e-mailing publishers.”he had spent many “hours calling, writing Den­ Letter from Soc’y, to Jule L. Sigall, Assoc. Register for nis Buck, Senior Curator, Aurora Historical (Mar. 23, 2005), [hereinafter “Letter from Policy & Int’l Affairs, U.S. Copyright Office Dennis Buck”], available at pdf. He stated “[t]he original publisher consolidated with another house, then was bought out, then that group was bought out, then pieces of the top group were sold away, etc.” Letter from Dennis Buck. Buck recounted that no one he talked to owned the rights, nor could they tell him who might own the rights. Letter from Dennis Buck. like This changing hands and consolidation of copyright owners caused him, and others him, the inability to use a specific work. R 32073-wne_34-2 Sheet No. 108 Side B 08/21/2012 07:54:18 B 08/21/2012 108 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 109 Side A 08/21/2012 07:54:18 R R R R R R R 549 and it Essen­

note 51, at note 80, at 84 80 5-JUN-12 12:32

supra Indefinitely Renewa­ Seq: 13 Seq: 82 note 80, at 506). Since few copyright holders note 12, at 26-27. note 80, at 500). The lack of commercial supra 85 unknown Tracking down the rightful owner down the rightful Tracking supra , 78 A study done by Judge Richard Pos­ A study done by Judge Richard 83 ORKS . 471, 477-80, 496-513 (2003); Huang, supra W EV These scenarios are not uncommon and con­ These scenarios note 29, at 135 (citing Landes & Posner,

79 . L. R RPHAN note 51, at 269. HI O The ease or difficulty of finding copyright holders The ease or difficulty of finding supra supra 81 note 13, at 312 (observing “the revenue stream mostly dries up when note 13, at 312 (observing “the revenue Eldred v Ashcroft, 537 U.S. 186, 268 (2003) (Breyer, J., dissenting) (not­ Eldred v Ashcroft, 537 U.S. 186, 268 (2003) , 70 U. C (citing Landes & Posner, supra (referencing Landes & Posner, at 28. EPORT ON R Id. Huang, Id. Id. Hickman, Id. See In addition to copyright holders being difficult to find, copy­ holders being difficult In addition to copyright Copyright renewal rates depend mainly on “the commercial Copyright renewal rates depend A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 78. 85. 81. 82. 83. 84. 79. 80. M K appeared that the majority of copyright owners did not think it was appeared that the majority of copyright worthwhile to renew a copyright. can be extremely challenging in certain complex scenarios. scenarios. in certain complex challenging can be extremely ex­ For owner is a heirs, or if the may die without copyright holder ample, a buyouts or (multiple) be a dissolution entity, there may corporate of who now thereby leaving no clear indication of the company, owns the copyright. tribute to the complexity of the orphan works problem. of the orphan works problem. tribute to the complexity existence because also not leave any trace of her right holders may work. of the copyrighted of the non-commercialability may also depend on the category of copyrighted work. may also depend on the category musical For the highest at thirty-two percent, works, copyright renewal rates are are at only eight percent, and but much lower for books, which percent. graphic-arts, coming in at three value of the work” at issue. 2012] 2012] and, property” of all, a form is, after “[c]opyright us that reminds making hands, therefore it can change forms of property, like other difficult to identify. an owner \\jciprod01\productn\W\WNE\34-2\WNE210.txt ner and William Landes found that between 1910 and 1991, “copy­ ner and William Landes found that twenty-two percent,” right renewal rates never topped 500) (stating that on average “copyrights have very little economic value after twenty- eight years”). incentive to renew a work begs the question of why copyrights last so long in the first 269; Sage, supra of profits available for the owner of the there is no longer any appreciable prospect problem). work” as contributing to the orphan work tially, the work is not worth enough to go through the efforts of is not worth enough to go through tially, the work known.making oneself she is likely to get If an author believes value, she is more work due to its commercial royalties from her available authorship and copyright information likely to make her to the public. ing that “only about 2% of copyrights can be expected to retain commercial value at the ing that “only about 2% of copyrights can & Richard A. Posner, end of 55 to 75 years”); William M. Landes ble Copyright C Y 32073-wne_34-2 Sheet No. 109 Side A 08/21/2012 07:54:18 A 08/21/2012 109 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 109 Side B 08/21/2012 07:54:18 R R R R M K C Y 34:537 34:537 , http:// [Vol.

5-JUN-12 12:32 2008 and Broad­ note 80, at 500. EPORT ON 88 UBLISHERS

P : R

supra FFICE Seq: 14 Seq: ESPONSE IN O For printed works, like For printed works, R UTHORS AND S 91 ’ ., http://www.bmi.com/about/?link= at 817 (footnote omitted). , A NC Id. , I unknown USIC OPYRIGHT OMPOSERS ONGRESS M Though these works have owners, these works have Though C C C 86 have stated that orphan “works are have stated that YOF ’ 89 TATES OC ROADCAST S S note 35, at 816. note 35, at 816. , B ORKS AND note 51, at 268-69. supra supra But despite these organizations’ efforts, not all in­ organizations’ efforts, not all But despite these NITED W WESTERN WESTERN NEW ENGLAND LAW REVIEW MERICAN supra 90 U In the world of music, for instance, the American Soci­ music, for instance, the American In the world of , A About BMI HE (relaying the account of a commentator who could not locate information 87 T RPHAN Broadcast Music, Inc. was created in 1939 as a non-profit performing rights Broadcast Music, Inc. was created in 1939 Huang, Thompson, Thompson, Id. ASCAP O Various organizations for specific types of copyrighted works of copyrighted specific types organizations for Various In 2005, the United States Copyright Office initiated an investi­ In 2005, the United States Copyright 89. is a membership association of more than 420,000 U.S. composers, songwrit­ is a membership association of more than kind of music . . . . ers, lyricists, and music publishers of every pro­ ASCAP and distributing royalties for the tects the rights of its members by licensing copyrighted works . . . . non-dramatic public performances of their ASCAP perform music simple for both cre­ makes giving and obtaining permission to ators and users of music. 88. 86. 87. 90. 91. III. cast Music, Inc. (BMI) cast Music, Inc. formation is known or made available. formation is known www.ascap.com/about/ (last visited May 24, 2012). behalf of songwriters, composers and music organization that “collects license fees on publishers and distributes them as royalties to those members whose works have been performed.” ety of Composers, Authors and Publishers (ASCAP) ety of Composers, relatively rare [due to] performance rights organizations (PROs) . . . to] performance rights organizations relatively rare [due copyright holder [catalogs and records] of maintain[ing] extensive information.” About ASCAP place. That question, though, is beyond the scope of this Note. in-depth more a For see Landes & Posner, look on the option of indefinite renewals, 550 it becomes years, about thirty after copyrights of their renewal seek owner of a on the to find the information potential users harder for years before. work created \\jciprod01\productn\W\WNE\34-2\WNE210.txt they have become orphaned. become orphaned. they have and information known make the author’s it a point to have made available. gation of the orphan works problem to determine if Congress gation of the orphan works problem on music artists). “Thus, even in the music industry, which is by far the most advanced in terms of collecting and maintaining up-to-date copyright information, orphan works are impeding the development of new works.” navbar (last visited May 24, 2012). books, paintings, photographs, film, or old computer codes, there photographs, film, or old computer books, paintings, holder is databases, and thus finding a copyright may be no such even harder. 32073-wne_34-2 Sheet No. 109 Side B 08/21/2012 07:54:18 B 08/21/2012 109 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 110 Side A 08/21/2012 07:54:18 R R R R R F­ 551 O 5-JUN-12 12:32 OPYRIGHT Hickman, supra The Register of 93 In 1870, copyright Id. Id. , U.S. C Seq: 15 Seq: Congress took action Congress took 98 95 note 12, at 17 (noting that in January note 12, at 1-2.

note 12, at 93. note 12, at 1-2; see also Each bill sought legislation that Each bill sought Information Circular Id. unknown determined that if a solution was determined that The Copyright Office’s objective objective Office’s Copyright The supra supra supra , 94 97 supra , 92 , ORKS ORKS ORKS ORKS W W W W and in the House of Representatives, the and in the House 96 RPHAN RPHAN RPHAN RPHAN O O The Register was astounded by the wide range of The Register was astounded by O O The Copyright Office received over 850 comments The Copyright Office received over 99 100 EPORT ON at 20. EPORT ON EPORT ON EPORT ON R R Id. power to enact laws establishing a Congress, through the Constitution, has the R Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong., § 1. Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong., § 1. Orphan Works Act of 2008, H.R. 5889, 110th Cong., § S. 2913; H.R. 5889. R Collecting Data on Orphans The Register of Copyright The Register of While researching the orphan works problem, the United While researching the orphan A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 95. 93. 94. 92. 96. 97. 98. 99. 100. (last visited May 24, 2012)., http://www.copyright.gov/circs/circ1a.html In the early M K Copyright is the head of the department. would “provide a limitation on judicial remedies in copyright in­ a limitation on judicial remedies would “provide involving orphan works.” fringement cases was fivefold: first, to explain the way the Copyright Office the Copyright explain the way first, to was fivefold: variety detail the extensive second, to the orphan issue; researched to explain arise; third, orphan works could where of circumstances to sum­ problem; fourth, the orphan works background of the legal finally, solutions; and varying proposed commentators’ marize the orphan problem results gathered regarding the to illustrate the recommendations for Congress. while also providing functions were centralized in the Library of Congress, and, in 1897, the Copyright Of­ functions were centralized in the Library fice became a separate department in the Library of Congress. from the public, held roundtable discussions in Washington, D.C. from the public, held roundtable met with various institutions and and Berkeley, California, and also organizations. attainable, legislation would be necessary. attainable, legislation system of copyright in the United States. system of copyright in the United States. 2005, Senators Orrin Hatch and Patrick Leahy and Representatives Lamar Smith and 2005, Senators Orrin Hatch and Patrick Leahy to look into and research this issue Howard Berman asked the Register of Copyrights so the Register could give Congress recommendations). organizations and individuals who sent comments: apparently, “the organizations and individuals who affects many types of people in orphan works issue [was] one that FICE A. industries for their opinions States Copyright Office asked creative on the matter. 2012] 2012] action. legislative take should \\jciprod01\productn\W\WNE\34-2\WNE210.txt “Orphan Works Act of 2008.” “Orphan Works years of the United States, district court clerks recorded claims. years of the United States, district court clerks in 2008. and the House. was proposed to both the Senate A bill In Bentley Orphan was to “be cited as the ‘Shawn the Senate, the Act Works Act of 2008’” note 29, at 126. C Y 32073-wne_34-2 Sheet No. 110 Side A 08/21/2012 07:54:18 A 08/21/2012 110 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 110 Side B 08/21/2012 07:54:18 R R R R R M K C Y OPY­ OPY­ supra 34:537 34:537 , , http:// [Vol. ORKS , U.S. C Reply Com­ FFICE , U.S. C 5-JUN-12 12:32 W O RPHAN O 104 It also determined It also determined OPYRIGHT Seq: 16 Seq: Initial Comments 103 , JISC (Apr. 2009), available at Roundtable Transcripts (7/27/05), EPORT ON , U.S. C R note 12, at 21. For a look at what the http://www.copyright.gov/orphan/tran-

note 12, at 2. , Yet through the real life exam­ the real life Yet through They prevent other users from They prevent other users from unknown supra supra 102 FFICE 105 , , O note 14. ORKS ORKS /; , http://www.copyright.gov/orphan/comments/reply

W W FFICE Due to the breadth of examples from all of all of from of examples breadth to the Due OPYRIGHT note 29, at 127; see also O RPHAN RPHAN 101 Consequently, potential users cannot use the Consequently, potential users O O Roundtable Transcripts: (8/2/05) Berkeley, Calif. Roundtable Transcripts: (8/2/05) Berkeley, supra 106 WESTERN WESTERN NEW ENGLAND LAW REVIEW , U.S. C OPYRIGHT ; , http://www.copyright.gov/orphan/comments/index.html , http://www.copyright.gov/orphan/transcript/0802LOC.PDF. at 21-22 (noting “[s]everal of the comments discussing genuine orphan EPORT ON EPORT ON R Id. Ryan Andrews, Contracting Out of the Orphan Works Problem: How the For a look at the breadth of the industries covered and the anecdotal infor­ For a look at the breadth of the industries Hickman, R FFICE FFICE O O These difficulties are real. The Copyright Office determined that, despite the wide range determined that, despite the The Copyright Office , U.S. C 102. 105. 106. 103. 101. 104. ; www.copyright.gov/orphan/transcript/0726LOC.PDF Washington, D.C. note 12, at 17 (stating that “[v]irtually every interest group typically involved in copy­ note 12, at 17 (stating that “[v]irtually every comments”). right policy debates was represented in the there are four obstacles obstructing and deterring one’s ability to obstructing and deterring there are four obstacles “(1) inadequate and locate a copyright owner: successfully identify (2) inadequate on a copy of the work itself; identifying information of a change of copyright ownership because information about owner; (3) limita­ in the circumstances of the ownership or a change sources; and (4) copyright ownership information tions of existing copyright information.” difficulties researching RIGHT Roundtable Transcripts: (7/26/05) Washington, D.C. Roundtable Transcripts: (7/26/05) Washington, Google Book Search Settlement Serves as a Private Solution to the Orphan Works Prob­ works situations were submitted by trade associations, academic societies, or other or­ works situations were submitted by trade associations, academic societies, or other ganizations, which surveyed their members, collected response, and aggregated numer­ ous genuine orphan works situations into a single comment”). 552 contexts.” different \\jciprod01\productn\W\WNE\34-2\WNE210.txt (last http://sca.jiscinvolve.org/wp/files/2009/06/sca_colltrust_orphan_works_v1-final.pdf visited May 24, 2012); see also supra they faced, one can read through the mation from those industries and the problems Office and the transcripts from the initial and reply comments sent to the Copyright three round tables held in 2005. at available are These United Kingdom did to determine the prevalence of orphan works in Europe, see gen­ United Kingdom did to determine the prevalence of ‘Orphan Works’ erally Naomi Korn, In From the Cold: An Assessment of the Scope to the Public and Its Impact on the Delivery of Services script/0726LOC.PDF; RIGHT ples and hypothetical situations, the Copyright Office determined Office determined the Copyright hypothetical situations, ples and existed. orphan problem that the when trying to industry faces similar problems of industries, each holders of orphan works. locate copyright ments republishing, exhibiting, or disseminating an orphan work to the republishing, exhibiting, or disseminating public at-large. these individuals and industries, the Copyright Office still had to Office still the Copyright and industries, these individuals problems of these and precise contours “the magnitude realize that unknown.” ] largely . . . remain[ 32073-wne_34-2 Sheet No. 110 Side B 08/21/2012 07:54:18 B 08/21/2012 110 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 111 Side A 08/21/2012 07:54:18 R R R . 553 Girl HILA , P . L.J. 97, 110 5-JUN-12 12:32 http://artsbeat. NTERDISC If an artist cannot Michiko Kakutani, A . I , Dec. 23, 2010, available at 109 AL Seq: 17 Seq: OICE V see also , 19 S. C note 12, at 3. , Mar. 17, 2010, available at ODERATE unknown supra is an example of a sampling artist. is an example of a sampling artist. M Girl Talk a Master of Musical Mixes , IMES HE 110 http://articles.philly.com/2011-02-04/entertainment/ http://articles.philly.com/2011-02-04/entertainment/ , T ORKS W , N.Y. T others like Girl Talk may not have the pro­ others like Girl Talk may not have note 35, at 816 (noting that “[t]hese forms of artistic ex­ note 35, at 816 (noting that “[t]hese forms 107 108 111 note 110 (stating that the artist Girl Talk “stands behind the

RPHAN O supra supra EPORT ON See generally id. R Girl Talk is the stage name for Gregg Gillis, “the biomedical engineer turned Girl Talk is the stage name for Gregg Gillis, Thompson, Also, some artists, like movie directors, have noted “insurance companies DeLuca, , Feb. 4, 2011, available at 112 The orphan works problem stifles the creativity of these poten­ problem stifles the creativity of The orphan works The United States Copyright Office has also identified other also identified Office has States Copyright The United A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE uses by subsequent creators who add some degree of their creators who add some degree (1) uses by subsequent work; (2) existing works to create a derivative own expression to to bring uses where users primarily wish large-scale “access” Internet; works to the public, usually via the large quantities of special­ uses, which usually involve (3) “enthusiast” or hobbyist post­ and also appear frequently to involve ized or niche works, a limited Internet; and (4) private uses among ing works on the number of people. 107. 108. 110. 109. 112. 111. NQUIRER M K http://themoderatevoice.com/96038/girl-talks-gregg-gillis-on-getting-sued/. tection of fair use, or are not brave (or reckless) enough to chance tection of fair use, or are not brave creating some mash-up or collage being sued for infringement by work. I find the copyright holder, she may not be willing to risk the fines find the copyright holder, she may and no new work will be and penalties of copyright infringement created. The artist Girl Talk blogs.nytimes.com/2010/03/17/a-mash-up-culture-ten-to-watch/; Joe Windish, Talk’s Gregg Gillis on Getting Sued Though he believes he is safe from suits of infringement because of Though he believes he is safe from the fair use doctrine, (2009). pop mash-up mad scientist” who creates new musical works by combining snippets of pop mash-up mad scientist” who creates already recorded music. Dan DeLuca, pression necessarily involve taking a preexisting work and incorporating it into a new pression necessarily involve taking a preexisting work”). tial users. have become Collage, found-object art, and sampling artists. prominent forms of art among modern types of potential users who are suffering the most due to this the most due who are suffering potential users types of problem: lem and Why It Should Matter to Policy Makers lem and Why It Should Matter to Policy 2012] 2012] which works, these enjoying of is deprived the public and works, disappear. effectively \\jciprod01\productn\W\WNE\34-2\WNE210.txt have taken the position of refusing to issue policies for new works where the author has have taken the position of refusing to issue policies for new works where the author copyright-law doctrine of Fair Use, which allows artists to reuse source material if the copyright-law doctrine of Fair Use, which allows artists to reuse source material if work they create is ‘transformative’”). Mash-Up Culture: Ten to Watch 27100696_1_experimental-music-gillis-pop-samples; 27100696_1_experimental-music-gillis-pop-samples; C Y 32073-wne_34-2 Sheet No. 111 Side A 08/21/2012 07:54:18 A 08/21/2012 111 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 111 Side B 08/21/2012 07:54:18 R R R R M K C Y HE 117

NNO­ note 34:537 34:537 I , T supra TOPS [Vol. ELLER , S 5-JUN-12 12:32

H ARKETS

ICHAEL M From educational From educational M 113 Seq: 18 Seq: RECKS 115 W the realistic ability to find a 118 See generally WNERSHIP Id. unknown This threat comes in the form of This threat comes O 116 UCH M OO T note 35, at 810. at 815-17. The injury to the public and the need for a solu­ (2008) (discussing the effect of too much private ownership (2008) (discussing the effect of too much OW note 13, at 300. supra IVES : H L WESTERN WESTERN NEW ENGLAND LAW REVIEW supra note 29, at 128. OSTS C CONOMY E An example of how our culture and economy suffers can be gleaned from an Thompson, Sage, Id. See generally id. See generally id. supra Additionally, the public at-large suffers from the general public at-large suffers from the Additionally, the AND , 114 “[T]he orphan works problem [also] represents a major imped­ problem [also] represents a “[T]he orphan works Individuals and small companies are not the only ones whose whose only ones not the are companies small and Individuals 118. 117. 116. In our stores . . . we have . . . machines in there where you can bring in an old In our stores . . . we have . . . machines in family photo, put it on there and copy it. What we run into mainly is . . . where old photograph . . . taken back in you’ve got a . . . customer who brings in an of it for their family album . . . . the ‘20s, ‘30s, ‘40s, and they just want a copy the photographer and] our policy And we can’t copy it because [we can’t find . . . supports the copyright law . . . . 113. 114. 115. RIDLOCK initial comment to the Copyright Office by Tom Poe, Director of Open Studios. Mr. stu­ Poe stated that an individual named Olu from Ghana, West Africa, requested the dio’s help in furthering his music career. from Tom Poe, Director of Open Stu­ Letter and how it creates a gridlock. the In the copyright sense, too many people cannot find do­ copyright owners of the orphan works because the works are not yet in the public main, thereby creating the gridlock, which is the orphan works problem. If there was a way around this gridlock, people could use the works, thereby creating more opportu­ nity for wealth in the market and thereby boosting the economy). facilities like the National Jazz Museum in Harlem, to creative art­ in Harlem, to creative Jazz Museum like the National facilities stifles expres­ the orphan works problem ists and large institutions, sion. VATION potential users “abandoning or altering” their works altogether. or altering” their works potential users “abandoning lack of access to orphan works, another major reason why the or­ orphan works, another major reason lack of access to needs to be resolved. phan works problem iment to economic growth as vast stores of copyrighted works exist growth as vast stores of copyrighted iment to economic licensing permis­ no clear owner to contact for in legal limbo with sion . . . . represent[s] a real [And the orphan works problem] economy.” threat to the U.S. creativity is stunted: “even large companies or well-funded institu­ or well-funded large companies is stunted: “even creativity for in an intensive search” to engage the financial means tions with old works works by using creating new holder are not a copyright penalties. of copyright infringement for fear Hickman, 35, at 818. This pressures film producers “to alter the content of their films, dramati­ a copyright holder and the risk of liabil­ cally in some cases, because they cannot locate ity from proceeding without permission.” roundtable hearings in 2005. tion is supported by the Copyright Office’s Copyright The from a representative from Wal-Mart: Office heard anecdotes like the following G American culture and economics suffer from stifled creativity due American culture and economics to the absence of a copyright owner, of previous works.” no documented permission to use excerpts Thompson, 554 \\jciprod01\productn\W\WNE\34-2\WNE210.txt 32073-wne_34-2 Sheet No. 111 Side B 08/21/2012 07:54:18 B 08/21/2012 111 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 112 Side A 08/21/2012 07:54:18 R R R R R R , 125 123 555 Tech­

But this OPYRIGHT 121 Id. 5-JUN-12 12:32 . Artists’ creativity is Id note 29, at 145. Though note 35, at 810. Seq: 19 Seq: They often “do not contain 119 note 10, at 99. But with tech­ supra Id. Distributive Values in Copyright supra note 26, at 725. , at 145-46. Parallel to the visual artist is supra Id. ORKS , unknown W note 51, at 274-76. It should be noted that tech­ IANTS would need to be ‘vetted’ for originality, then set to would need to be ‘vetted’ for originality, then http://www.copyright.gov/orphan/comments/OW01 http://www.copyright.gov/orphan/comments/OW01 G RPHAN O Visual artists have a disadvantage that other artists, like note 13, at 300; Thompson, supra Id.

note 51, at 274 (stating that “orphan works hamper the crea­ note 51, at 274 (stating that “orphan works Huang, supra Additionally, “[t]he prevalence of orphan works prevalence of orphan works Additionally, “[t]he the benefits of the times we live in are wasted. the benefits of the times we live EPORT ON HOULDERS OF 124 122 S supra . 1535, 1539 (2005)). Sage, supra (quoting Molly Shaffer Van Houweling, EV N THE note 29, at 144-47. Visual artists may produce the easiest works to become Id. Id. O See Id. Huang, See generally Professor Van Houweling makes the argument that “the that “the makes the argument Van Houweling Professor (Mar. 3, 2005), available at . L. R Moreover, with the existence of new technologies, the access to the access of new technologies, with the existence Moreover, A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE supra 120 EX 122. 123. 124. 119. 121. 120. 125. FFICE M K nology brings us in contact more frequently with copyrighted in contact more frequently nology brings us needing physical “break[ing] down [limitations to works, while also of nonphysical the wide-ranging dissemination copies] by enabling digital copies.” text or other information that a user can rely on to help determine the identity of the text or other information that a user can rely on to help determine the identity of copyright owner.” R undermines the benefits that these digital technologies provide.” benefits that these digital technologies undermines the cultural importance and ubiquity of copyrighted texts, images, and texts, images, ubiquity of copyrighted importance and cultural forms of creativity multimedia collage and other sounds may make more vital forms existing copyrighted works even that incorporate the past.” than they have been in of cultural commentary and use of copyright works are hindered by the orphan works prob­ by the orphan works are hindered of copyright works and use lem. The digital age is supposed to be liberating creativity and new forms supposed to be liberating creativity The digital age is off the “shoul­ with potential users trying to work of expression, but ders of giants,” Policy & Int’l Affairs, U.S. dios, to Jule L. Sigall, Assoc. Register for C O 2012] 2012] is work a copyrighted if of liability the fear and owner, copyright surfaces later. the copyright owner used and \\jciprod01\productn\W\WNE\34-2\WNE210.txt 75-Poe.pdf.song Poe stated “[e]ach to be ‘vetted’ for originality.” music, and . . . the music would [also] need cost money that Olu did not have.music Olu may not have ever been able to create the potentially copyrighted conflicts is not simple he wanted because the cost of identifying or cheap—in part due to orphan works. Furthermore, Poe noted that this scenario where “[t]he cost of identifying and takes place in a lot of inner-city neighborhoods is overwhelming.” arranging to pay unknown copyright holders being stifled—they cannot afford to legally create. Our economy is being similarly sti­ the market. fled by the lack of more creative works in unleash”). tive potential that new technologies could 83 T orphaned due to “the very nature of their medium.” nology has made it even easier to disseminate some types of creative works, specifically nology has made it even easier to disseminate paintings, graphics, sculptures, etc.in the visual arts, which include photographs, Hick- man, technology can help in creating new works, it also has some drawbacks for some artists technology can help in creating new works, it also has some drawbacks for some artists in protecting their works. authors of books, movies, or music, do not. nology, especially Internet search engines, it is much easier for someone to find any nology, especially Internet search engines, it is much easier for someone to find visual image and copy it for their own use. Hickman, C Y 32073-wne_34-2 Sheet No. 112 Side A 08/21/2012 07:54:18 A 08/21/2012 112 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 112 Side B 08/21/2012 07:54:18 R R R M K C Y 131 34:537 34:537 [Vol. 5-JUN-12 12:32 The Office had 130 Visual artists do not have 129 Seq: 20 Seq: Id. note 12, at 25. note 12, at 93. It should also be noted Visual art, then, is more likely to Visual art, then, unknown supra supra , , Libraries and archives want the abil­ and archives want Libraries 128 127 ORKS ORKS The majority of these institutions main­ of these institutions The majority W W Id. 126 note 29, at 145. RPHAN RPHAN O O supra WESTERN WESTERN NEW ENGLAND LAW REVIEW at 93-94. (noting that“[t]ypically these institutions acquire these works by dona­ (noting that“[t]ypically these institutions EPORT ON EPORT ON Id. R Id. Id. Hickman, R The Copyright Office detailed its findings and made recom­ The Copyright Office detailed Visual art, however, is only one example of a type of work that is only one example of a type Visual art, however, The orphan works problem, especially with respect to photo­ respect with especially works problem, orphan The Register of Copyright Office’s Recommendations Register of Copyright Office’s Recommendations 131. 130. 127. 128. 129. 126. that the purpose of this Note is not to flesh out and analyze these recommendations in that the purpose of this Note is not to flesh out and analyze these recommendations of detail, but merely to mention them; such an in-depth discussion is beyond the scope this Note. two goals in mind when making recommendations: (1) there should two goals in mind when making potential users together so they be a system that puts owners and using a work; and (2) there should can come to an agreement about after trying to reasonably and be a system in place so a user who, can still make use of the work. diligently find a copyright owner, become orphaned more quickly, even if an author is still alive and more quickly, even if an author become orphaned value is relatively high. the work’s commercial ity to provide these works for the public, to expand and enrich our to expand and for the public, these works ity to provide culture and learning—which of the copy­ are the underlying goals right—but status of these to because of the orphan are unable of liability. works and the risk tain massive collections of photographs where there is no indication there is no photographs where collections of tain massive author is or was. of who the tion, such as where individuals give personal effects to a museum upon the death of a tion, such as where individuals give personal family member. . . . [And] the donors rarely have information about the copyright provenance of the materials they donate.in These institutions then face a dilemma and in fulfilling their institutional purpose of striving to meet the expectations of donors preserving and making works available, while also complying with the law of copyright and minimizing . . . liability for infringement.”). mendations to Congress for a legislative solution. mendations to Congress for a legislative becomes orphaned.work can become or­ Any type of creative not make them­ and/or copyright holders do phaned if the authors selves known. of the Copyright For these reasons, the Register to Congress. its study and gave suggestions Office completed B. graphs and other forms of visual art, is quite prevalent for archives, prevalent for visual art, is quite other forms of graphs and and museums. libraries, the music artist, who could turn to ASCAP, an organization that keeps the majority of the music artist, who could turn to ASCAP, piece of music. information about a copyright holder of a represents their many interests, so even if a an equivalent “umbrella organization” that he has no easy starting point as a potential user wants to find the copyright information, user of a musical piece does. 556 \\jciprod01\productn\W\WNE\34-2\WNE210.txt 32073-wne_34-2 Sheet No. 112 Side B 08/21/2012 07:54:18 B 08/21/2012 112 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 113 Side A 08/21/2012 07:54:18 557

139 5-JUN-12 12:32 Seq: 21 Seq: unknown The Copyright Office further discussed what The Copyright Office further discussed In addition, the recommendation had two In addition, the The Report also recommended a requirement The Report also recommended 136 134 137 135 and second, that a solution to the orphan works prob­ to the orphan that a solution and second, 132 The Report goes on to explain the reasoning supporting this require­ at 94. at 95. at 96. at 96-107. at 110. 133 Id. Id. Id. Id. Id. Id. Id. Id. at 110-12. The reasoning behind this is to let the public know that the The reasoning behind this is to Id. The Copyright Office also suggested that if an orphan work The Copyright Office also suggested The Copyright Office suggested that the reasonably diligent The Copyright Office suggested The favored solution from all the commentators and the Copy­ from all the commentators The favored solution A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 138 132. 133. 134. 135. 136. 137. 138. 139. M K ment: it provides more notice to authors and copyright holders; giving credit is impor­ be tant to copyright in the first place; since a diligent search was necessary, there should for at least some information that can be attributed; and, it diminishes the potential abuse. it meant to “locate” a copyright holder and perform a “reasonably it meant to “locate” a copyright diligent search.” main parts: first, two threshold requirements of a reasonably dili­ two threshold requirements of main parts: first, available to copy­ second, a limited list of remedies gent search; and a reasonably are able to prove they conducted right holders if users diligent search. that before an orphan work user would be within the safe harbor of that before an orphan work user to provide any information on any legislation, the user would have work user was able to iden­ the copyright holder that the orphan tify. work is the product of another, at least to some extent. work is the product of another, user did all that was necessary within a statute, copyright owners, user did all that was necessary within have a limitation on remedies. should they surface later, would The compensation for the use remedy would be limited to reasonable search needed to be completed before the orphan work was used, search needed to be completed to prove that the search she and it was the potential user’s burden did was reasonable. right Office itself was that if a potential user has done a reasonably was that if a potential user has right Office itself yet is still una­ a copyright owner’s information, diligent search for be able to use the owner, the potential user should ble to locate that fear of full-out become an actual user without orphan work and statutory liability. 2012] 2012] the Copyright to important were aspects two other Additionally, of and be independent “should that any legislation office: first, to and limitations existing exemptions conjunction with work in copyright,” \\jciprod01\productn\W\WNE\34-2\WNE210.txt lem should be efficient and not too burdensome on all parties on and not too burdensome be efficient lem should involved. C Y 32073-wne_34-2 Sheet No. 113 Side A 08/21/2012 07:54:18 A 08/21/2012 113 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 113 Side B 08/21/2012 07:54:18 R R M K C Y 34:537 34:537

[Vol. The Cop­ The 5-JUN-12 12:32 140 Seq: 22 Seq:

Congress took the Cop­ Congress

17 U.S.C. § 504(c)(2) (2006) (stat­ 17 U.S.C. § 141 unknown If a case for infringement was brought If a case for infringement was brought Besides the diligent search language in Besides the diligent search language 142 144 A copyright holder, who was ultimately not A copyright holder, who was ultimately note 106, at 111. note 106, at 111; see also 146 supra supra WESTERN WESTERN NEW ENGLAND LAW REVIEW at 115. at 121. The policy behind this limitation was to promote greater The policy behind this limitation S. 2913 § 2; H.R. 5889 § 2. 2; H.R. 5889 § S. 2913 § 2. 2; H.R. 5889 § S. 2913 § Andrews, Id. Id. Andrews, 2 (2008); Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. § 145 143 Based on the Copyright Office’s recommendations from the Office’s recommendations Based on the Copyright Continuing to follow the Copyright Office’s suggestions, the Continuing to follow the Copyright The 2008 Orphan Works Acts The 2008 Orphan 145. 146. 144. 140. 141. 142. 143. Report on Orphan Works, Congress created legislation in an at­ Works, Congress created legislation Report on Orphan orphan work problem. tempt to solve the the of theme central The was “to limit the in both chambers of Congress proposed legislation an infringer where holder may obtain against remedies a copyright for the author a reasonably diligent search the infringer performed of the work prior to use.” yright Office’s study seriously and decided to act. seriously and decided to act. yright Office’s study C. each proposed Act, there was a second requirement compelling the each proposed Act, there was a second the copyright holder when it was orphan work user to give credit to some information on the copyright possible (e.g., when the user had holder). use of creative works by reducing the fear of the full penalties af­ use of creative works by reducing forded by copyright law. Act defined “reasonable compensation” as “the amount on which a Act defined “reasonable compensation” the positions of the infringer and willing buyer and willing seller in would have agreed with re­ the owner of the infringed copyright work immediately before the in­ spect to the infringing use of the fringement began.” 558 relief. injunctive for full ability on the a limitation and \\jciprod01\productn\W\WNE\34-2\WNE210.txt ing that an award of statutory damages can be in an amount up to $150,000 if the in­ ing that an award of statutory damages can be in an amount up to $150,000 if the fringement is found to be willful). Orphan Works Act of 2008, H.R. 5889, 110th Cong. § 2 (2008). Orphan Works Act of 2008, H.R. 5889, 110th Cong. § yright Office recommended “a savings clause that makes clear that that makes “a savings clause recommended yright Office and limi­ affects rights on orphan works in the new section nothing that, after Act,” and in the Copyright copyright elsewhere tations to in prac­ after it has been the issue Congress re-examine ten years, are needed. if any alterations tice to see against orphan works users and they could show the fulfillment of against orphan works users and then the orphan work users would the diligent search requirement, compensation” to the copyright only be responsible for “reasonable owner. found after the diligent search, would not be able to get injunctive found after the diligent search, would 32073-wne_34-2 Sheet No. 113 Side B 08/21/2012 07:54:18 B 08/21/2012 113 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 114 Side A 08/21/2012 07:54:18 R 559 Dis­ Id. Id. , (Oct. 6, N ’ Further­ SS 5-JUN-12 12:32 A 152 Thus, even if Limiting such Limiting 151 OLD 147 C 148 Seq: 23 Seq: The drawback that this The drawback that HOTOGRAPHERS P 149 EWS UT IN THE N O unknown EFT L AROLINA , S. C note 106, at 112. RPHANS O supra 150 IV. The author of the article dramatically points out that the Act “would at 113. The “reasonable compensation” aspect of the 2008 proposed bill Id. Id. Orphan Works 2008 Andrews, Id. S. 2913 § 2; H.R. 5889 § 2.2; H.R. 5889 § work, This is similar to creating a derivative S. 2913 § The objections did not come solely from the legislature, as cop­ The objections did not come solely Despite the extensive study and data collected by the Copy­ study and data collected Despite the extensive A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 152. 150. 151. 148. 149. 147. M K more, the majority of visual artists are more prolific than “creators more, the majority of visual artists a visual artist has her work registered with the Copyright Office, a visual artist has her work registered notice and re-upload the work to someone could easily remove the the Internet for display. may A user finding the vandalized work the copyright holder. then find it impossible to find relief is Congress’s “attempt to counteract [the] inefficiency” of a [the] inefficiency” to counteract Congress’s “attempt relief is in her not would result liability, which user’s fear of would-be work. of the orphan productive use” “making force artists to risk their lives’ work” because of the parameters built into it. 2008), available at http://www.scnpa.org/2008/10/06/orphan-works-2008/. yright holders also had a problem with the proposed Orphan Works yright holders also had a problem Act—particularly may have been the most ad­ visual artists, who versely affected. with Visual artists often do not publish their work of the copyright owner, new tech­ credit lines or, if there was notice such notice. nology made it so others could remove right Office and Congress’s attempt at legislation, there is still no Congress’s attempt at legislation, right Office and today.orphan works act the bill, but the House The Senate passed refused to. the Orphan Works It seems that, at least to the House, “significant drawbacks.” Act of 2008, had 2012] 2012] transform[ed], user “recast, work orphan as the so long relief significant work with a the infringed or integrate[d] adapt[ed], original expression.” of [the infringer’s] amount \\jciprod01\productn\W\WNE\34-2\WNE210.txt was one such drawback, as was whether a search was “reasonably diligent.” cussing the impact of an unfavorable meaning and determination of “reasonable com­ pensation” is outside the scope of this Note. which is defined as “a work based upon one or more preexisting works . . . in which a which is defined as “a work based upon one work may be recast, transformed, or adapted.”101 (2006). 17 U.S.C. § Note focuses on is the provision requiring judicial determination of is the provision requiring judicial Note focuses on diligent work user performed a reasonably whether an orphan search. ef­ This uncertainty in the litigation would create a chilling have to fear the cost of litigation fect on potential users, who would to pay the copyright holder if she just as much as the cost of having ever surfaced. C Y 32073-wne_34-2 Sheet No. 114 Side A 08/21/2012 07:54:18 A 08/21/2012 114 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 114 Side B 08/21/2012 07:54:18 R M K C Y J. 203 34:537 34:537 ETER , AIGA, OPYRIGHT [Vol. & P RONTIER 5-JUN-12 12:32 F , U.S. C The argument NDERSON 156 http://www.aiga.org/the-or­ L. A Seq: 24 Seq: IGHTS ON THE 155 R ERRY LTERNATIVES TO T CTION : A A ROPERTY unknown Id. : P Electronic Copyright Office RPHANS EST Essentially, determining what exactly Essentially, determining O W 154 EGISLATIVE , (Jun. 3, 2008) available at ILD L , W ESIGN ILD D note 13, at 295-96; see also W PTIONS FOR WESTERN WESTERN NEW ENGLAND LAW REVIEW O O supra S 153 N FOR ’ The cost of filing for registration with the Copyright Office is $35 if done The cost of filing for registration with the OT SS V. N Sage, Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 677 (S.D.N.Y. 2011) David Rhodes, The Orphan Work You Save Could Be Your Own Id. . A HE , http://www.copyright.gov/eco/ (last visited May 24, 2012). ROF Water Law Congress, through the introduction of legislation, attempted to the introduction of legislation, Congress, through in the right direction, but be­ The 2008 proposals were a step Copyright holders also feared the proposed bills’ lack of defini­ bills’ lack of the proposed holders also feared Copyright The argument has been made that water law in the American The argument has been made that , T 156. 155. 154. 153. P FFICE ILL online, and $65 if done in hard copy. was “reasonable” when conducting a search created inherent uncer­ when conducting a search created was “reasonable” users and copyright holders. tainty for both potential (similarly noting that “[t]he questions of who should be entrusted with guardianship (similarly noting that “[t]he questions of who should be entrusted with guardianship ap­ over orphan books, under what terms, and with what safeguards are matters more propriately decided by Congress . . . ”). phan-work-you-save-could-be-your-own/. H strike a compromise for copyright holders and orphan work users. for copyright holders and orphan strike a compromise was not passed, and the orphan Unfortunately, the legislation works problem remains. the legis­ The orphans were dropped from lative stage and have yet to return. is not As noted, the problem the problem now rather than dwindling; it makes sense to address to have become an even more deal with it at a time when it is likely pressing issue. orphan works problem contin­ cause of their ultimate failure, the ues. This Note advocates a legislative solution to this problem; this approach that may be poten­ however, there are alternatives to here. tially viable and are worth exploring tion for “reasonably diligent search” could lead to a “case-by-case” lead to a “case-by-case” search” could “reasonably diligent tion for to different the federal courts, potentially leading definition among cases. results in different O THE A. a solution to the orphan works West might provide the basis for the bills lacked. problem, making up for what 560 cost so “[t]he and works,” cinematographic and musical of literary, tens of of registering individual artists to and time-consumption would be a low fee, at even of visual works, thousands prohibitive.” \\jciprod01\productn\W\WNE\34-2\WNE210.txt 32073-wne_34-2 Sheet No. 114 Side B 08/21/2012 07:54:18 B 08/21/2012 114 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 115 Side A 08/21/2012 07:54:18 R R R 158 159 561 NDUS­ The I 164 http://www. 5-JUN-12 12:32 OPYRIGHT When Amer­ note 35, at 804. , C 161 157 IWEK Seq: 25 Seq: E. S 3 (2009), available at Furthermore, “[i]t seems Furthermore, “[i]t Thompson, supra 160 TEPHEN S EPORT see also unknown but “U.S. policy will still need to offi­ but “U.S. policy will still need to 162 2003-2007 R HE : T note 13, at 307. note 13, at 309; see also CONOMY supra supra The official legitimization would come through legisla­ The official legitimization would at 310. at 315. at 314. at 314-15. at 315-16 (emphasis added). U.S. E Sage, Id. Id. Id. Id. Id. H.R. Rep. No. 94-1476, at 136; Sage, 163 legitimize the nominally unauthorized use of orphan legitimize the nominally unauthorized The “use it or lose it” policy, though sound, is not realistic in The “use it or lose it” policy, though This sort of “use it or lose it” scheme could potentially come it or lose it” scheme could potentially This sort of “use A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 157. 159. 160. 161. 162. 163. 164. 158. M K European countries did not have issues with water law like the European countries did not have that European countries Americas did, decreasing the likelihood problem, which is similar to the will solve their orphan works reasonable to allow the copyright owner to move back in and reas­ the copyright owner to move reasonable to allow the copyright’s revenue stream.” sert her rights to tion, and if there is going to be legislation in the end, the most effi­ tion, and if there is going to be legislation to tackle the issue head on. cient way is to persuade Congress today’s copyright environment. in the United States, much Today amendments have a recur­ of copyright law reform and legislative of [adopting European guide­ ring theme that “[t]he advantages lines] . . . outweigh[s] any possible disadvantages.” cially works.” through grassroots efforts, (2004) (noting that “[t]he lessons from the American West not only are usefully applied (2004) (noting that “[t]he lessons from the property rights are evolving and will evolve to history but also provide insights into how on new frontiers”). 2012] 2012] to are unable both that contending to water, copyrights analogizes and way that chattels in the same from the commons be “captured resources. are valuable captured” yet both land are to be a that there needs argument posits The water-law-copyright about intellectual shift in how Americans think similar national like “[a] [s]carce it should be seen more property generally; treated as such. an infinite one and should be [r]esource” than water, he thus lost the West, if one did not use his Like water law in not use his or her if a copyright holder does the right to it; similarly, incentive), he or because there is no economic copyright (mainly his or her right to it. she would lose \\jciprod01\productn\W\WNE\34-2\WNE210.txt iipa.com/pdf/IIPASiwekReport2003-07.pdf (estimating that copyright’s economic value iipa.com/pdf/IIPASiwekReport2003-07.pdf to the United States economy was $1.52 trillion in 2007). TRIES IN THE icans moved west, they began to change their thinking about water their thinking about to change west, they began icans moved East. as it was in the readily available water was not as because C Y 32073-wne_34-2 Sheet No. 115 Side A 08/21/2012 07:54:18 A 08/21/2012 115 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 115 Side B 08/21/2012 07:54:18 R R R R R M K C Y See 34:537 34:537 CROs

[Vol. . 545, 575-76 , http://www. 167 . 65, 91 n.267 5-JUN-12 12:32 EV EV OOGLE . L. R As an example As an example . L. R , G note 106, at 114. In the 169 NT KRON note 106, at 118. Seq: 26 Seq: : The Write Stuff for Copyright supra . L.A. E CROs function as a middle­ CROs function OY Andrews, supra

166 See , 21 L unknown Google Book Settlement , note 102. 168 New York Times v. Tasini, 36 A note 106, at 99 (noting that “[w]hile it is most common for a note 106, at 99 (noting that “[w]hile it is most . 863, 882 (1999). Korn, supra EV by analogizing to water law, or promulgating a or promulgating law, to water analogizing by supra 165 Ownership of Electronic Yuri Hur, Note, Tasini v New York Times: WESTERN WESTERN NEW ENGLAND LAW REVIEW See . U. L. R note 106, at 118; FAQs AP See generally Andrews, Id. Publication Rights Clearinghouse The National Writers Union created the Michael A. Forhan, Tasini v. New York Times monitor public performances and broadcasts of copyrighted music. monitor public performances and broadcasts func­ The Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 670 (S.D.N.Y. 2011); An­ supra Arguably, the government is not the solution to the orphan to the orphan is not the solution the government Arguably, Today there are many CROs that help both people who want many CROs that help both people Today there are Collective Rights Organizations and Privatization and Privatization Rights Organizations Collective , 27 C 165. 166. 168. 169. 167. works problem; rather private organizations provide the answer provide the private organizations rather works problem; and using col­ of intellectual property rights through privatization (CROs). lective rights organizations “use it or lose it” policy. lose it” policy. “use it or B. make the licensing process easier while still allowing authors to process easier while still allowing make the licensing their works. have control of googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q1 (last visited googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q1 (last visited May 24, 2012). “The Registry will have the authority to act as a non-exclusive licensor representing the interests of rightsholders. . . . middleman a as work will Registry The dis­ between Google and rightsholdres, collecting licensing revenues from Google and tributing them to authors and publishers.” Andrews, of how this privatization may work for orphan works, imagine that of how this privatization may work one of its editors found.a magazine wants to include an article In­ negotiating terms with the indi­ stead of the magazine finding and the magazine could pay an vidual copyright owner of the article, man by accumulating individual works and then selling licenses to individual works and then man by accumulating a fee. permitted to use the work for customers who are (2000). In the music industry, performance rights organizations—ASCAP,and BMI, SESAC— licensing fees and then collect those fees to tion of these organizations is to negotiate distribute to copyright holders as royalties. book world, there was an attempt to have the Amended Settlement Agreement by book world, there was an attempt to have Google for the Google Book Project, which had an aspect called the Book Rights Reg­ istry which was supposed to act as a CRO for books, to be accepted by the court. generally drews, to use copyrighted works and copyright owners who want to receive works and copyright owners who to use copyrighted control over their works. royalties and exercise 562 States’, United \\jciprod01\productn\W\WNE\34-2\WNE210.txt government to initially grant property rights, private organizations can, and have, cre­ government to initially grant property rights, Rights] without any initial government ated and enforced [Intellectual Property Con­ grant”); Mark B. Radefeld, Note, The Medium is the Message: Copyright Law fronts the Information Age in (PRC) to administer collective licensing of freelance work, and digitally process permis­ (PRC) to administer collective licensing of sion payments. Law? (2003). Copyrights Rightfully Returned to Authors 32073-wne_34-2 Sheet No. 115 Side B 08/21/2012 07:54:18 B 08/21/2012 115 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 116 Side A 08/21/2012 07:54:18 R R R R R 563

Also, If the 171

170

5-JUN-12 12:32 note 172 and Legislation, note 88 (repre­ Picture Licensing 172 supra , See infra Seq: 27 Seq: represented. are See About ASCAP Privatization also gives rise to Privatization also unknown 173 note 169. It is important to note that the organi­ note 125 and accompanying text explaining visual note 125 and accompanying text explaining supra , , 770 F. Supp. 2d at 677-78 (quoting Eldred v. Ashcroft, , 770 F. Supp. 2d at 677-78 (quoting Eldred See supra note 106, at 125. supra See FAQs . , PLUS, http://www.useplus.com/ (last visited May 24, 2012). For example, just because one is a music artist or a publisher of music does For example, just because one is a music See Authors Guild Andrews, It is important to note that not all types of creative works have a CRO look­ It is important to note that not all types of Despite the benefits of CROs, there are drawbacks. of CROs, there are drawbacks. Despite the benefits pri­ First, A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE and an insert 172. 171. 173. 170. M K not necessarily mean he or she is represented by ASCAP or BMI.not necessarily mean he or she is represented a One must become member of one of these organizations first. songwriters, lyricists, and music publish­ senting “more than 420,000 U.S. composers, ers”). The Amended Settlement Agreement was only to apply to books that Google a decided to copy onto its website, and there were limitations on what is considered book 537 U.S. 186, 212 (2003)) (noting how safeguards for copyright protection many not 537 U.S. 186, 212 (2003)) (noting how safeguards agreements, and that “it is generally for Con­ fully be in place in private, self-interested pursue the Copyright Clause’s objectives”). gress, not the courts, to decide how best to accompanying text. not every form of art is represented by a CRO, nor is every artist or art is represented by a CRO, nor not every form of necessarily represented by a CRO. copyright holder work happened to be orphaned, there could be a potential “pool” be a potential there could to be orphaned, work happened come forward. copyright owners for when those of revenue This the get used whether and helps works arguably beneficial process is or not. work is an orphan follow copyright parties may not always try to vate, self-interested no law, it would be in a situation where there is laws, and therefore, a law. to contemplate and create such better for Congress in contrast, would act as a blanket and cover all types of creative act as a blanket and cover all in contrast, would for all. works with safeguards “[p]otential antitrust violations” because setting up collective rights “[p]otential antitrust violations” to function as [a] monopol[y] organizations can “have the potential 2012] 2012] articles. published CRO for fee to a determined already duty The the copy­ the owner of the CRO to find be placed on would then of the CRO. is a member the copyright holder right if \\jciprod01\productn\W\WNE\34-2\WNE210.txt zation Picture Licensing Universal System (PLUS) is on a “mission[ ] to simplify and zation Picture Licensing Universal System (PLUS) is on a “mission[ to facilitate the communication and management of image rights,” while also trying help those who “creat[e], distribut[e], us[e] and preserv[e] images.” Universal System ing out for their interests. musical artists.artists’ difficulties in this area compared to note It is also important to of a specific type of creative works’ that just because a CRO represents the majority artists, that does not mean all of the artists C Y 32073-wne_34-2 Sheet No. 116 Side A 08/21/2012 07:54:18 A 08/21/2012 116 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 116 Side B 08/21/2012 07:54:18 R R R M K , C Y Fash­ 34:537 34:537 See [Vol. WANSTROM . 1061, 1076 322 (4th ed. S 5-JUN-12 12:32 EV note 106, at 125. Cynthia Lee, The In addition, a ODD U.S.A. 332, 355-56 OLITICS Y 177 P ’ & T OC S

Seq: 28 Seq: , 39 B.C. L. R 175 MERICAN

at 18; see also EIDELMAN CTION A S Id. This is further illustrated by This is further illustrated A OPYRIGHT This monopoly concern is not is not concern monopoly This 178 174 . 471, 550 (2008) (pointing out that a simple . 471, 550 (2008) (pointing out that a simple AYMOND unknown EV , 33 J. C , R L. R EGISLATIVE NTRODUCTION TO IROFF I L M N AVIS , 770 F. Supp. 2d at 677; Andrews, supra : A , Broad. Music, Inc. v. Columbia Broad. Sys., 441 U.S. 1, 6 , Broad. Music, Inc. v. Columbia Broad. Sys., RUCE VI. B Bernard Korman & I. Fred Koenigsberg, Performing Rights in Bernard Korman & I. Fred Koenigsberg, note 176, at 550. EBATE See e.g. , 42 U.C. D D WESTERN WESTERN NEW ENGLAND LAW REVIEW See As our elected representatives, Congressmen should representatives, Congressmen should As our elected supra at 106-07. a CRO called the Fashion In the 1930s, fashion guilds created

note 106, at 99-100. ASCAP grew to be a huge player in the music 176 See generally Id. See Authors Guild the “necessity of having a The United States Supreme Court has recognized Lee, supra EMOCRATIC Legislative Benefit Legislative Legislation is the most advantageous way to resolve the orphan most advantageous way to resolve Legislation is the 177. 174. 175. 176. 178. D HE represent what the nation, as a whole, would want. represent what the legislature “can commission studies, take testimony, and conduct commission studies, take testimony, legislature “can investigations.” continuing oversight the Register of the Office of Copyright through research that was the Office of Copyright through the Register of conducted in 2006. regarding a re-evalua­ Each bill had a provision The Ascap Licensing Model and the Internet: A (1985-86); Michael B. Rutner, Note, The Ascap Licensing Model and the Internet: Infringement Potential Solution to High-Tech Copyright way to solve the issue of “gay panic” evidence issue in the courtroom may be to have way to solve the issue of “gay panic” evidence “[a]ll judges in the relevant jurisdiction [be­ legislative action which has the benefits of leading to uniform results in similarly situ­ ing] required to follow the legislative rule, ated cases”). 564 from users.” surplus extract a and A. in copy­ it creates uniformity and consistency works issue because right law. \\jciprod01\productn\W\WNE\34-2\WNE210.txt Originator’s Guild of America (FOGA) and tried to protect against ‘style piracy’ de­ Originator’s Guild of America (FOGA) and is still not protected by copyright or patent spite the fact fashion design was not and law. But the Supreme Court held FOGA to be illegal on antitrust grounds. clearer rule” even at the expense of creating “anomalies.” clearer rule” even at the expense of creating 130 Friend, v. Corp. Hertz S.Ct. 1181, 1194, (2010) (determining that a corporation’s principal place of business, center). for diversity jurisdiction purposes, is its nerve are there that noted Court The system.” benefits in having “a more uniform legal (1998). 2007) (stating that Congress is considered “the ‘people’s branch’—a branch filled with citizen-lawmakers, accessible to citizens who wished to be heard, open to citizens who wished to hear its deliberations, resistant to arbitrary action and secrecy from the exec­ utive,” and stating “[a]s the most representative branch of American national govern­ ment, Congress [would] be expected to speak for the concerns, grievances, and interests of popular democracy”). T applicable if there is a legislative solution. if there is a legislative applicable ion Originators’ Guild of Am. v. Fed. Trade Comm’n, 312 U.S. 457, 461-68 (1941); An­ ion Originators’ Guild of Am. v. Fed. Trade drews, the courts of its monopolistic power and had industry and there were concerns among antitrust concerns. of Composers, Authors and Publishers, 744 (1979); Buffalo Broad. Co. v. Am. Soc’y F.2d 917, 920-22 (1984). To avoid future antitrust litigation, ASCAP had to change its licensing system. Gay Panic Defense Music and Performing Rights Societies 32073-wne_34-2 Sheet No. 116 Side B 08/21/2012 07:54:18 B 08/21/2012 116 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 117 Side A 08/21/2012 07:54:18 R 565

5-JUN-12 12:32 A clearer, E31, E31 (2010) 180 Seq: 29 Seq: Brad Holland, Trojan Horse: and “diligent inquiry” as IOCOMMUNICATION 182 See generally unknown , 36 J. B 523 (9th ed. 2009). defines “diligent” as “[c]areful; atten­ defines “diligent” as “[c]areful; Such a provision would help Congress un­ help Congress provision would Such a ICTIONARY note 106, at 125. 179 D AW supra L S If the drafters of a newly drafted bill were clearer in If the drafters of a newly drafted ’ 181 Looking at other areas of the law can create a guidable Looking at other areas of the law LACK Id. Andrews, Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. § 5(c) S. 2913, 110th Cong. § Shawn Bentley Orphan Works Act of 2008, S. 2913 § 2; H.R. 5889 § 2. 2; H.R. 5889 § S. 2913 § B 183 Black’s Law Dictionary The proposed Act required the user of an orphan work to con­ The proposed Act required the user The predominant reason the Orphan Work Act of 2008 did not Act of 2008 did the Orphan Work reason The predominant A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE Defining Diligence Defining Diligence 183. 180. Not later than 2 years after the date of the enactment of this Act, the Comp­ Not later than 2 years after the date of the on the Judiciary of the House of troller General shall submit to the Committee Judiciary of the Senate a report on Representatives and the Committee on the such administrative, regula­ the study conducted under this section, including the Register considers appropriate. tory, or legislative recommendations that 179. 181. 182. M K their definition of this key phrase, then such a bill would have more their definition of this key phrase, at-large and the legislature support from the artistic community this part of the law. would be more willing to make tive; persistent in doing something,” duct a “reasonably diligent search,” but what those words meant duct a “reasonably diligent search,” was vague. well-defined articulation would more likely overcome the impasse would more likely overcome well-defined articulation then become law. overcome in 2008 and would the bill could not if a copyright of liability would be ameliorated As a result, the fear works issue. thereby resolving the orphan holder later surfaces, B. derstand the effects of legislation on the orphan works problem and orphan works problem on the the effects of legislation derstand could be created. further legislation whether that the overall, was in Congress House, and therefore pass in the and would have diligent search” was too vague phrase “reasonably of a problem for artists in general. caused too much “[a] careful and good-faith probing to ascertain the truth of some­ “[a] careful and good-faith probing thing.” definition of a “reasonably diligent search.” definition of a “reasonably diligent 2012] 2012] in had been the law issue after works orphan of the of the state tion two years. effect for \\jciprod01\productn\W\WNE\34-2\WNE210.txt Orphan Works and the War on Authors 5589 § 7(b). H.R. 5589 § (2008); Orphan Works Act of 2008, H.R. 5889; 110th Cong. § 7(b) (2008). 5889; 110th Cong. § (2008); Orphan Works Act of 2008, H.R. Both pro­ with some slight variation: posed bills stated the following language, (noting the orphan works legislation was stopped in 2006 and 2008 “by an aggressive (noting the orphan works legislation was stopped in 2006 and 2008 “by an aggressive opposition campaign led by artists and photographers”). C Y 32073-wne_34-2 Sheet No. 117 Side A 08/21/2012 07:54:18 A 08/21/2012 117 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 117 Side B 08/21/2012 07:54:18 M K C Y 34:537 34:537 Section [Vol. 5-JUN-12 12:32 190 Section 274(a)(1) Section 274(a)(1) Pursuant to section Seq: 30 Seq: 184 188 unknown in which the taxpayer was a television in which the taxpayer was a television Essentially, the taxpayer only had a few Essentially, the taxpayer only had But section 274(d) of the code states But section 274(d) of the code 186 , 189 191 185 WESTERN WESTERN NEW ENGLAND LAW REVIEW at 976. Internal Revenue Code Code Revenue Internal I.R.C. § 274 (2006). I.R.C. § 274(a)(1)(A). I.R.C. § Hughes v. Comm’r, 451 F.2d 975 (2d Cir. 1971). Id. Id. Id. Id. 162(a) (2006). I.R.C. § Part of his job included keeping up the morale and keep­ Part of his job included keeping 187 To illustrate how this section of the Code works, consider To illustrate how this section 1. can assist the legisla­ (the Code) Revenue Code The Internal ex­ Code is concerned with entertainment Section 274 of the No deduction or credit shall be allowed . . . unless the taxpayer No deduction or credit shall be allowed by sufficient evidence cor­ substantiates by adequate records or (A) the amount of such roborating the taxpayer’s own statement 184. 185. 186. 187. 188. 189. 190. 191. 162(a) of the Internal Revenue Code allows an individual taxpayer 162(a) of the Internal Revenue Code “all the ordinary and necessary to deduct from his gross income the taxable year in carrying on expenses paid or incurred during any trade or business.” generally states that one cannot claim an entertainment expense as that one cannot claim an entertainment generally states the item was di­ the taxpayer establishes that a deduction “unless preceding or or, in the case of an item directly rectly related to, . . . that and bona fide business discussion following a substantial of the taxpayer’s with, the active conduct such item was associated trade or business.” stage manager at New York’s CBS studio between 1963 and stage manager at New York’s 1964. that: ing the crew fed. The manager would buy coffee, doughnuts, sand­ ing the crew fed. The manager would wiches, and drinks for their consumption. Hughes v. Commissioner ture in drafting a better definition of a “reasonably diligent search” diligent definition of a “reasonably a better ture in drafting for orphan works users. with below have dealt courts discussed The income tax a deduction for to prove of adequate evidence the issue for Congress in reasoning should act as guidance and these courts’ regarding orphan works. drafting a new bill of business expenditures. pense deductions 566 \\jciprod01\productn\W\WNE\34-2\WNE210.txt 274(d) of the Code, the taxpayer wanted to deduct half of the cost 274(d) of the Code, the taxpayer of the expenses. held that the expenses claimed The Tax Court taxpayer had failed to substanti­ could not be deducted because the ate the records properly. receipts from one bar, and no other documentation. receipts from one bar, and no 32073-wne_34-2 Sheet No. 117 Side B 08/21/2012 07:54:18 B 08/21/2012 117 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 118 Side A 08/21/2012 07:54:18 567 , “the real 5-JUN-12 12:32 Furthermore, 194 , 451 F.2d at 977. , 451 F.2d at 977. Hughes v. Comm’r, 451 , where the taxpayer could not sufficiently Seq: 31 Seq: In Townsend see also 197 see also Hughes see also Hughes 192 196 unknown 195 If the taxpayer cannot meet the adequate record re­ cannot meet the adequate record If the taxpayer , 451 F.2d at 977-78. 193 Temp. Treas. Reg. § 1.274-5T(c)(3); I.R.C. § 274(d). I.R.C. § Temp. Treas. Reg. § 1.274-5T(c)(2) (2011); Temp. Treas. Reg. § 1.274-5T(c)(3); Hughes Townsend Industries, Inc. v. United States, 342 F.3d 890, 891 (8th Cir. 2003). Another illustration on how section 274(d) works is in the case Another illustration on how section This section of the Code can be referred to as the “5-Ws” be­ This section of the Code can be A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE expense or other item, (B) the time and place of the . . . en­ of the . place time and (B) the item, or other expense business purpose . . . (C) the amusement, recreation tertainment, to the tax­ the business relationship . . . , and (D) of the expense . . . . persons entertained payer of 194. 192. 193. 195. 196. 197. Townsend Industries, Inc. v. United States Townsend Industries, Inc. v. United M K wanted to deduct a fishing trip that he and his employees went on wanted to deduct a fishing trip that as a directly related business expense. F.2d 975, 976-77 (2d Cir. 1971). “[i]f such element is . . . the cost or amount, time, place, or date of is . . . the cost or amount, time, “[i]f such element shall be direct . . . , the corrobative [sic] evidence an expenditure writing or the oral testimony of evidence, such as a statement in setting forth detailed infor­ persons entertained or other witnesses mation about such element.” crux of the matter” was determining whether the taxpayer could crux of the matter” was determining were reasonable and necessary to sufficiently prove that the trips quirement, there is an alternative, according to the Regulations; the is an alternative, according to the quirement, there “(A) By each element of the expenditure taxpayer must establish specific in­ whether written or oral, containing his own statement, other corrobora­ as to such element; and (B) By formation in detail to establish such element.” tive evidence sufficient of cause it requires the taxpayer to provide information on “Who? cause it requires the taxpayer to in order to get an entertainment What? Where? When? and Why?” expense allowed as a deduction. The Internal Revenue Service ex­ records as reflected in Treasury pects taxpayers to keep adequate Regulation § 1.274-5. The taxpayer in Hughes were no written records or other establish the record, because there purpose of the expenses, nor evidence substantiating the business corroborated to meet the re­ were the taxpayer’s oral statements quirements under section 274(d). 2012] 2012] that “ade­ 274(d) state pursuant to section regulations The Treasury of ex­ log, statement book, diary, include “account quate records” . . . which, record . . . and documentary evidence pense . . . or similar element of an ex­ are sufficient to establish each in combination, penditure.” \\jciprod01\productn\W\WNE\34-2\WNE210.txt C Y 32073-wne_34-2 Sheet No. 118 Side A 08/21/2012 07:54:18 A 08/21/2012 118 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 118 Side B 08/21/2012 07:54:18 M K C Y 203 , 34:537 34:537 For the For the [Vol. 5-JUN-12 12:32 199 The district district The Although it Although 198 200 Seq: 32 Seq:

Charron v. United States In Charron v. United unknown 202 Similarly, a diligent search done by Similarly, a diligent search done 205 206 201 WESTERN WESTERN NEW ENGLAND LAW REVIEW at 786. at 793. at 895. at 894. at 895. at 898. The court determined that none of the documentation that none of the documentation The court determined Charron v. United States, 200 F.3d 785, 786 (Fed. Cir. 1999). Id. Id. 17 U.S.C. § a maximum fine of $150,000 for each 504(c)(2) (2006) (imposing Id. Id. Id. Id. Berkley Mach. Works & Foundry Co. v. Comm’r, 623 F.2d 898, 906-07 (4th 204 Congress can learn from the teachings of these courts, and Congress can learn from the teachings The Internal Revenue Service has required taxpayers to keep The Internal Revenue Service has Courts have emphasized that a taxpayer’s own statement, that a taxpayer’s own Courts have emphasized 203. 204. 205. 206. 198. 199. 200. 201. 202. Circuit Court, the witness testimony was extensive enough on the extensive enough testimony was the witness Circuit Court, in 274(d). set forth satisfy the requirements whole to court decided that the evidence was not sufficient because it was sufficient because was not that the evidence court decided the and therefore “lacked recollections” of “witnesses’ made up reversed. the Eighth Circuit specificity,” but necessary held in favor of the taxpayer, the Eighth Circuit admonished district taxpayer, the Eighth Circuit admonished held in favor of the evidence of oral, non-contemporaneous courts to “be suspicious cases.” provided in such an orphan work user needs to be as detailed as the record keeping an orphan work user needs to be of a responsible taxpayer. to de­ If Congress worded the statute as mand the “Who? it What? Where? When? and Why?” of a search, if the search truly was dili­ would be easier for courts to determine gent and reasonable. others like them. example, oral testimony may be acceptable For so long as it can pass muster and evidence for orphan works users, submitted by the taxpayers was valid, and that relying only on taxpayers was valid, and that submitted by the unsubstanti­ that was seen as “unpersuasive, vague testimony as relying on their tax returns was ated[,]” and unsupportive as well not enough to satisfy 274(d). detailed records in the event of an audit. detailed records in the event of an audited being of fear The work’s copyright owner coming is similar to the fear of an orphan copyright owner surfaces, and forward, except if an orphan work without permission the conse­ one has appropriated the work quences could be more dire. standing alone, is not sufficient. standing alone, the taxpayers were Canadian citizens seeking refunds on income Canadian citizens seeking refunds the taxpayers were in the United playing professional hockey they earned from States 568 274. section under deductible therefore the business \\jciprod01\productn\W\WNE\34-2\WNE210.txt willful infringement). Cir. 1980). 32073-wne_34-2 Sheet No. 118 Side B 08/21/2012 07:54:18 B 08/21/2012 118 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 119 Side A 08/21/2012 07:54:18 569

at 22. Id. 5-JUN-12 12:32

209 This has been in­ at 22-23. defendant The 207 Seq: 33 Seq: at 22. The government tried Id.

Id.

, the Federal Bureau of Al­ unknown . 803(10) (2006). VID In United States v. Yakobov . R. E (citations omitted) (quoting United States v. Robinson, 544 F.2d 110, 115 ED court further noted that in such a situation the document court further noted that in such 208 Federal Rules of Evidence Rule 803(10) Rule 803(10) Rules of Evidence Federal United States v Yakobov, 712 F.2d 20, 24 (2d Cir. 1983).United States v Yakobov, 712 F.2d 20, 24 The defendant was F Id. 2. in at­ Code is not the only guidance The Internal Revenue A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE The ATF Certificate states that [the custodian of ATF licensing The ATF Certificate states that [the application for “Jakubov, Si­ records] searched for a license or mantov.” any search was made under There is no indication that “Yakubov.”or “Yakobov” name the mis­ The use instead of first and last names hardly spelled versions of both Yakobov’s suggests diligence . . . . extended discussion to “It hardly requires search cannot justify the con­ demonstrate that a casual or partial we conclude that the ATF clusion that there was no record,” and Rule 803(10). Certificate was not admissible under 208. 207. 209. at 24. M K records that stated a diligent search had been conducted across several states’ records records that stated a diligent search had been conducted across several states’ records terpreted to mean the “essential requirement of [the rule] is that the “essential requirement of terpreted to mean of a ‘diligent absence of a record be the result evidence of the search.’” cohol, Tobacco and Firearms (ATF) had a certificate indicating a cohol, Tobacco and Firearms (ATF) but the court looked at the docu­ diligent search was conducted, ment and stated: charged with unlawfully engaging in firearms dealing. charged with unlawfully engaging in firearms to prove this by a signed certificate by the custodian of firearms licensing records— and no license was found to be held by the defendant. appealed his conviction stating the admission of the certificate was erroneous. To the court, a diligent search had clearly not been conducted. To the court, a diligent search had The Yakobov 2012] 2012] enough. extensive be considered interpretations and Provisions be able to Congress will kept in mind, and should be such as these dili­ a reasonably prove they conducted, to conduct, and guide users gent search. diligence in searching. tempting to define Fed­ the of 803(10) Rule the absence of a states that “[t]o prove eral Rules of Evidence . . evidence in the or data compilation . record, report, statement 902, or testimony, in accordance with rule form of a certification report, statement, failed to disclose the record, that diligent search or entry” must be shown. or data compilation, \\jciprod01\productn\W\WNE\34-2\WNE210.txt The appellate court agreed stating the certificate could not come into evidence because The appellate court agreed stating the certificate could not come into evidence because Federal Rules of Evidence 803(10) required a diligent search, which was not done here. Id. (2d Cir. 1976)). C Y 32073-wne_34-2 Sheet No. 119 Side A 08/21/2012 07:54:18 A 08/21/2012 119 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 119 Side B 08/21/2012 07:54:18 M K C Y 212 211 . The 34:537 34:537 214 [Vol. 5-JUN-12 12:32

Seq: 34 Seq: unknown A diligent search requires more. 213 WESTERN WESTERN NEW ENGLAND LAW REVIEW Bayley, 132 Mass. 457, 457 (1882) (regarding the sale of a debtor’s at 461. : in situations involving the spelling of the name of a po­ the spelling of the involving : in situations Serving Notices Id. Id. Id. In re Potential orphan works users can keep in mind the lesson of in mind the lesson users can keep orphan works Potential 3. for guidance in drafting and Another place Congress can look that may shed light on what it An old, but still applicable, case Bankruptcy 210 212. 213. 210. 211. Yakobov spelling testing different diligence implies owner, tential copyright variations. be learned in lesson can more applicable A broader, diligent search.”helping define “reasonably If a single form of and a user should avenues should be undertaken, search fails, other recording each search attempt.be responsible for Furthermore, the enough to work user keeps should be adequate records an orphan conducted. face that a diligent search was indicate on their Evi­ or it does not lacking, in that it is too short dence that is facially considered insuffi­ taken in a search, can be show multiple avenues a diligent search. cient evidence of “reasonably diligent search” is in explaining the requirement of a the realm of the service of process. provide cases following The diligent search” in the con­ examples of courts defining “reasonably text of serving notices. for Congress can apply similar techniques in the orphan work context defining “reasonably diligent search” of orphan works. and provide guidance for users a. diligent search is In re Bayley means to conduct a reasonably The court officer was required to serve notice on the debtor regard­ The court officer was required to of property. ing an execution issued for the sale goal officer’s The to the debtor. was delivery of the notice in hand was officer The to make the service.” expected to “use reasonable diligence be served, here the debtor, was Merely stating that the person to he should be was not good not where the court officer thought enough for the court. 570 or was done search a diligent on whether instructive can be itself not. \\jciprod01\productn\W\WNE\34-2\WNE210.txt property after an execution was issued by the court; the officer who delivered the exe­ no­ cution stated he complied with the statute’s standard regarding serving the debtor to tice on the sale of the property, but the court held that the officer did not conform the diligent search standard). 32073-wne_34-2 Sheet No. 119 Side B 08/21/2012 07:54:18 B 08/21/2012 119 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 120 Side A 08/21/2012 07:54:18 571 The and, 215 222 5-JUN-12 12:32 Seq: 35 Seq: of the search,” In this case, the defendants There was no address on the 217 . 218 unknown 221 The defendants wanted to forfeit the The defendants wanted to forfeit 219 It is clear that to have conducted a proper diligent a proper that to have conducted It is clear 216 The defendants said they conducted a diligent search, The defendants said they conducted at 354. at 355 (emphasis added). Id. Id. Id. Id. Id. Id. Id. Id. Qualley v. State Fed. Sav. & Loan, 487 N.W. 2d 353, 355-57 (Iowa Ct. App. of the search but the quality 220 Again, there is a lesson to be learned here for orphan works lesson to be learned here for Again, there is a diligent search is in Qual­ Another example of a court defining The court stated “[a] diligent search is measured not by the The court stated “[a] diligent search A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE Forfeiture of Real Estate 218. 219. 220. 221. 222. 214. 215. 216. 217. M K search, the officer should have actually gone to the petitioner’s should have actually gone search, the officer knowledge firsthand, and had actual, personal home, confirmed if not, the officer was or was not at home, and that the debtor whereabouts. further inquiries as to the debtor’s should have made users. identity is impos­ being told that a copyright holder’s Simply for conducting a to be ascertained is insufficient sible or unlikely reasonably diligent search. work user must conduct the The orphan may eventu­ of how unlikely it is that information search, regardless and record additionally, will need to document ally be found, and the details of the search. work user can Through this, the orphan gain protection under the statute. b. ley v. State Federal Savings & Loan court found that the officer had not conducted a diligent search of a diligent had not conducted that the officer court found had never notice, as he did not have and that the debtor the debtor been served. sold real estate to a third party, David Rosenberger, who later as­ sold real estate to a third party, signed his rights to the plaintiff. rights of Rosenberger and had to give forfeiture notice to the as­ rights of Rosenberger and had signees. but the court found differently. quantity 2012] 2012] “was the petitioner heard that had the officer that indicated record or search, further inquiry and “made no not” at home, probably of the notice.” any legal service attempt to make and no \\jciprod01\productn\W\WNE\34-2\WNE210.txt 1992). furthermore: assignment for the plaintiff. C Y 32073-wne_34-2 Sheet No. 120 Side A 08/21/2012 07:54:18 A 08/21/2012 120 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 120 Side B 08/21/2012 07:54:18 M K C Y 34:537 34:537 [Vol. 5-JUN-12 12:32 ILIGENT D Seq: 36 Seq: 223 , 487 N.W.2d at 353)). EANS TO BE Qualley M T unknown I HAT W PPLYING If orphan work users can prove that they satisfied If orphan work users can prove Part VI (discussing the importance of keeping an adequate written WESTERN WESTERN NEW ENGLAND LAW REVIEW A 224 Id. See supra VII. Bayley, 132 Mass. 457, 460 (1882) and Part VI illustrated that defining a reasonably diligent search is Part VI illustrated that defining In a broader context, this language can be applied to orphan this language can be applied In a broader context, In determining whether a search is diligent, we look at the at­ look at we is diligent, a search whether In determining at­ entity to see if missing person or to locate the tempts made to render the channels expected made through tempts are missing identity. not require the search does While a reasonable in­ it is an means of discovery, possible or conceivable use of all to it must extend would make, and a reasonable person quiry that to persons is likely to be obtained and places where information to have course of events, would be likely who, in the ordinary person or entity sought. information of the 223. 224. In re these requirements, in accordance with new legislation outlining these requirements, in accordance not difficult if Congress looks at other areas of law as models for an not difficult if Congress looks at orphan works bill. Based on the foregoing examples, a reasonably of detailed records of the diligent search requires the keeping as opposed to solely quantita­ search process, qualitative searching and channels that are likely to tive searching, searching avenues on the unlikelihood of something produce results, and not relying being found. works. in superficial places work users cannot solely look Orphan a copyright holder.when conducting stating that one Simply more about the database, without explaining looked in a single not used, will or why other databases were quality of the database diligent search.not be deemed a users must make an Orphan work reasonable look for copyright holders through honest effort to channels. (in the This may mean contacting the BMI or ASCAP companies, or the copyright of­ case of a music work), publishing fice, etc. for If orphan work users are serious about using the work of culture and society, the their own purpose and the furtherance will remove the usual statu­ bargain being struck is that Congress if the orphan work users prove tory penalty for infringement only to find the copyright holder. they have made an acceptable effort 572 \\jciprod01\productn\W\WNE\34-2\WNE210.txt record, like that required under section 274(d) of the Internal Revenue Code; attempt­ 712 ing different spellings of names unlike the ATF officer in United States v. Yakobov, F.2d 20, 24 (2d Cir. 1983); and doing a quality search, not just quantitative, unlike those in 32073-wne_34-2 Sheet No. 120 Side B 08/21/2012 07:54:18 B 08/21/2012 120 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 121 Side A 08/21/2012 07:54:18 R 573 Bayley, , 487 N.W. In re 5-JUN-12 12:32 Qualley 225 before Google em­ before Google Seq: 37 Seq: 228 For purposes of this section, For purposes of 227 226 unknown note 169 and accompanying text. , 712 F.2d at 23-24 (discussing what it means to diligently search for See supra Yakobov The following examples will not only look at different types of copyright The following examples will not only look 17 U.S.C. § 504 (2006) (discussing what an infringer of copyright may be 504 (2006) (discussing 17 U.S.C. § Books—The Library Project Google The examples above, describing how courts and statutes have The examples above, describing By applying the standards established by the other areas of by the other areas established the standards By applying Google attempted to create a CRO regarding books, to be to create a CRO regarding Google attempted A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 227. 228. 226. 225. M K assume that Congress had passed the Orphan Works Bill, with had passed the Orphan assume that Congress diligent search” defining the term “reasonably more exact language aforementioned case law, according to the barked on its Library Project.barked on its Library that, under the current It is clear permission and Google would have to acquire copyright statutes, could be and are fees to the rightsholders who likely pay licensing readily found. that It is the not-so readily found copyright holders are at issue—the parents. orphans’ vanished what Google would have to do defined diligent searches, illustrate Orphan Works Bill, if Congress in order to satisfy a newly proposed were to create one. Taking aspects from the Internal Revenue a detailed record of everything it Code, Google would have to keep searched—who it did or did not find; where it tried to look up; what when it conducted its search (the it did or did not find information; law, it is clear that the orphan works problem can be resolved problem can be orphan works clear that the law, it is language. clearly defined through 2012] 2012] for the liable not be would work users orphan then factors, theses 17. section 504 of Title under full infringement A. Rights Registry. called the Book \\jciprod01\productn\W\WNE\34-2\WNE210.txt 132 Mass. at 460 (discussing diligent search of debtor after the execution of property for 132 Mass. at 460 (discussing diligent search of debtor after the execution of property sale). works (books, music, and visual art) but also illustrate the various sizes and resources of works (books, music, and visual art) but also orphan work users. is Google represents the “large” orphan work user; the Museum or individual user.the “medium” user; the professor is the “small” One might wonder search” should be different depending on the if the standard for a “reasonably diligent an orphan work user. The author of this size and resources available to a particular of “reasonably diligent search” should be Note thinks that a clearly drafted definition of orphan work user, regardless of resources. able to be applied equally for every type v. a name regarding a requirement under Federal Rule of Evidence 803(10)); Charron De­ United States, 200 F.3d 785, 792 (Fed. Cir. 1999) (discussing the Internal Revenue partment’s requirement of adequate record keeping under section 274(d) of the Code); Berkley Mach. Works & Foundry Co. v. Comm’r, 623 F.2d 898, 901 (4th Cir. 1980) (same); Hughes v. Comm’r, 451 F.2d 975, 979 (2d Cir. 1971) (same); 2d at 355-57 (discussing diligence in the forfeiture of real estate setting); liable for, including the copyright owner’s actual damages and any additional profits of liable for, including the copyright owner’s as $150,000). the infringer, or statutory damages as high C Y 32073-wne_34-2 Sheet No. 121 Side A 08/21/2012 07:54:18 A 08/21/2012 121 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 121 Side B 08/21/2012 07:54:18 M K , C Y 34:537 34:537 , 200 F.3d [Vol. 5-JUN-12 12:32 Charron A record of all A record 229 Seq: 38 Seq: , 623 F.2d at 901 (same); Hughes

If testimony is to be relied on, If testimony is to 230 unknown Finding nothing will be frustrating, Finding nothing for establishing a diligent search. a diligent for establishing On the face of its evidence, it must be On the face of its evidence, it must 231 232 Introduction. WESTERN WESTERN NEW ENGLAND LAW REVIEW , 487 N.W. 2d at 355. , 487 N.W. 2d at 355. Bayley, 132 Mass. at 461 (had the court officer looked for the debtor 233 See I.R.C. 1.274-5T(c)(2); 274(d); Temp. Treas. Reg. § § Qualley In re Qualley See supra Having the record is not enough—the record is not Having the and of the record quality It is important that Google make “an inquiry that a reasonable Google make “an inquiry that It is important that The advantage of the proposed legislation is that it can apply to The advantage of the proposed legislation Music—The Savory Collection 229. 230. 231. 232. 233. the information contained within the record also needs to be of a also needs within the record contained the information diligent. quality that is considered start would be a these things it must be extensive and corroborated.it must be extensive multiple places Searching important. and databases is 574 in the looked why it and searching); spent and time frame time on some places depending why it looked in did (explaining places it dead ends encountered). gathered or information \\jciprod01\productn\W\WNE\34-2\WNE210.txt at 792 (discussing the Internal Revenue Department’s requirement of adequate record at 792 (discussing the Internal Revenue Department’s keeping under section 274(d) of the Code); Berkley but it cannot be the end right away, because diligence requires the end right away, because but it cannot be more. with the librar­ will have to inquire with publishers, Google and with the from, with the copyright office, ies it gets the books authors of the books. a diligent search may If the author is dead, and who inherited to learn when he or she died include attempting the rights. it must extend to places where person [or entity] would make, and and to persons who, in the ordi­ information is likely to be obtained likely to have information of the nary course of events, would be person or entity sought.” all forms of creative works. Another inquiry is what would some­ recording have to do in order to one who wants to use a musical prove it conducted a diligent search? of Museum Jazz National The will provide this section’s Harlem and the Savory Collection example. apparent that Google’s search was thorough, extensive, and dili­ apparent that Google’s search gent. for If Google went through the detail-oriented search process it would be safe from litigation each orphan work it wanted to use, as an outright infringer. B. 451 F.2d at 979 (same). other than at the debtor’s home, a sufficient search, one to be considered diligent, would have taken place and therefore the notice might have been effective). 32073-wne_34-2 Sheet No. 121 Side B 08/21/2012 07:54:18 B 08/21/2012 121 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 122 Side A 08/21/2012 07:54:18 R R R R R R , 575 Ad­ 240 UARDIAN G 5-JUN-12 12:32 The artists HE note 1, at 48-49. 239 , T

237 Seq: 39 Seq: a “minefield . . . [that a “minefield The Museum has over 238 but that does not mean does not mean but that 234 241 236 Seidenberg, supra note 12, at 26-27 (noting copyright is a unknown supra , It could not merely perform a cur­ It could not merely perform a 242 note 6; see also ORKS W supra note 1. , RPHAN note 1. note 1. O note94. Part VII.A. The Museum can feature the recordings to visitors the recordings can feature The Museum supra supra 235 Rohter, supra EPORT ON See supra Rohter, It is important to know that not all property passes through probate, and it Savory Collection Rohter, Sean Michaels, Jazz Treasure Trove to be Made Public See See supra R Although the Museum knows the name of the artists, one can­ knows the name of the artists, Although the Museum Currently, the Museum is digitizing the discs, but all agree the agree the but all the discs, is digitizing Museum the Currently, confusing? laws were not so unclear and But what if copyright A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 241. 242. 240. 236. 234. 235. 237. 238. 239. M K ditionally, checking the Copyright Office might be helpful, as any ditionally, checking the Copyright there. published recordings can be found would be a good starting point, but many may have assigned their starting point, but many may have would be a good their rights on in a or have since died and passed rights elsewhere, testamentary fashion. There are organizations that the Museum database, like ASCAP or BMI, for would want to also consult as a the artists were not the holders. the original copyright holders if for the Museum to identify those From there, it might be possible have passed and could poten­ individuals to whom the rights may it would be a daunting task tially check the probate courts, though passed through probate. to see if any of the copyrights were is] unclear.” could be possible that some of the artists set up trusts, which included the royalties of could be possible that some of the artists set up trusts, which included the royalties the creative works. Or some of the rights of the music may have been owned by the record companies, which would be something else the Museum would want to look into, as it is likely the artists, wanting to make money, would have sold their songs. type of property and therefore “ownership may pass through many hands, and by vari­ type of property and therefore “ownership estate or a car may have multiple owners ous legal mechanisms” just as a piece of real over time). . Aug. 18, 2010, http://www.guardian.co.uk/music/2010/aug/18/jazz-treasure-trove not assume that the artists own the copyrights today. not assume that current copyright status is “complicated”; status current copyright clear “rea­ an Orphan Works Act that provided What if there was search” language?sonably diligent Google, the Museum Like “Who? What? keep a record and a trail of the would have to and Why?” of the search. Where? When? 2012] 2012] \\jciprod01\productn\W\WNE\34-2\WNE210.txt 1,000 recordings whose copyright holders it must identify before al­ 1,000 recordings whose copyright lowing access to the public. the entire song can be released to the public. to the public. song can be released the entire owns Museum The them. the music on discs, but not the physical in Harlem and present snippets online, and present snippets in Harlem C Y 32073-wne_34-2 Sheet No. 122 Side A 08/21/2012 07:54:18 A 08/21/2012 122 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 122 Side B 08/21/2012 07:54:18 M K C Y 34:537 34:537 [Vol. 5-JUN-12 12:32

Seq: 40 Seq: unknown June 2, 2011, http://www.fpb.org/news/2432. but would be required to go through through to go required would be but 243 USINESS B Id. RIVATE P WESTERN WESTERN NEW ENGLAND LAW REVIEW ORUM OF , F Finally, this Note will consider the potential orphan visual art Finally, this Note will consider the If the Museum found the copyright holders, then it would be the copyright holders, then If the Museum found for all parties—theThis outcome would be beneficial Museum Visual Art 243. their Copyright owners can come after anyone they find misappropriating user. being Visual artists may have the strongest case for their work due mainly to the nature of abused by any orphan works legislation the medium of visual art and technology. artists visual even Yet, all the different possibilities that would be reasonable. that would possibilities all the different Contacting CROs may but those good starting points, and BMI are the ASCAP the answer.not provide recorded in music having been Despite the and it names of the artists, Museum has the and 1940s, the the 1930s be locat­ might still the heirs and assignees that is not inconceivable able. family lines might be the records of deaths and Searching passed through because if any of the rights helpful for the Museum search could help is a public record, and such a probate, probate efforts. with the Museum’s agreed to it), (so long as the copyright owner able to get a license hear the full recordings.and the public could If no copyright holder then the Mu­ after conducting the diligent search, could be found would be able to the music and the public seum could still distribute hear the entire song. The Museum would be protected because it the degree required. conducted its diligent search to music and the public would bene­ would profit from distributing the fit from the music’s accessibility. The copyright holder, after such a or come forward.search, might never be found If a copyright reasonable compensation under owner does surface, he could get to hold the Museum liable and the statute, but would not be able profit off of his own previous inaccessibility. do­ by Museum, The fulfilled its part of the bargain and ing its diligent search, will have would be safe from major liability. C. 576 search, or incomplete sory \\jciprod01\productn\W\WNE\34-2\WNE210.txt work. Small businesses can and will be fined for using copyrighted materials without work. Small businesses can and will be fined for using copyrighted materials without permission from the copyright holder. The Forum of Private Business had to issue a warning to small business whose websites may or may not have copyrighted images: “Check you have the right to use images on your website, small businesses warned.” Check You Have the Right to Use the Images on Your Website, Small Businesses Warned The Forum Chief Executive noted that several members of the organization, all small The Forum Chief Executive noted that several members of the organization, all small businesses, had received calls from Getty saying they owed the larger company money for unlicensed use of images. 32073-wne_34-2 Sheet No. 122 Side B 08/21/2012 07:54:18 B 08/21/2012 122 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 123 Side A 08/21/2012 07:54:18 R R R 577 247 The 245 5-JUN-12 12:32 the professor magazine, it was magazine, it was It is important to re­ Seq: 41 Seq: 251 250 the Federal Rules of Evi­ magazine in 1957. magazine 252 In this example, the professor unknown 248 After inquiring at Life After inquiring 246 magazine might be able to point him in the magazine might be able to point note 69, at 10-11. note 69. search is necessary. magazine without a license.magazine without But if Congress The magazine may have had the photograph The magazine may have had note 229 and accompanying text. Part VI.B.1. 249 Cunard, supra Cunard, supra Qualley v. State Fed. Sav. & Loan, 487 N.W.2d 353, 355 (Iowa Ct. App. (recounting, among others, the experience of Professor Joseph M. Siry, (recounting, among others, the experience See Id. Id. Id. See supra See Id. See See supra A professor wanted to publish a photograph of an architec­ a photograph wanted to publish A professor The professor should be able to understand from the face of his The professor should be able to understand At the time the professor had this problem, there was nothing professor had this problem, there At the time the For this example, one of the examples from the College Art from the College the examples example, one of For this A LEGISLATIVE SOLUTION TO THE ORPHAN WORKS PROBLEM PROBLEM WORKS THE ORPHAN TO SOLUTION A LEGISLATIVE 244 244. 245. 246. 247. 248. 249. 250. 251. 252. M K magazine gave credit to an individual in that issue, “but it was not to an individual in that issue, magazine gave credit the photogra­ was the maker of the rendering, clear if that person supplied the or someone who had otherwise pher of the rendering image for publication.” clear it did not have any information on the individual, either. any information on the individual, clear it did not have taken as a “work for hire” or because someone was named on the taken as a “work for hire” or because that individual down and asked photograph, he could have tracked owner. that individual about the copyright tural rendering that appeared in Life that appeared tural rendering record of his search whether it will be considered a diligent search record of his search whether it will or not. teach­ If there are records adequate enough to satisfy the ings of the Internal Revenue Code, he could do to protect himself from liability had he wanted to use himself from liability had he could do to protect Life the image from what it meant Works Act that contemplated had passed an Orphan then diligent search,” and to conduct a “reasonably been safe—soconducted his search, he could have long as he fol­ Congress in the Act (again, assum­ lowed the parameters set out by ing Congress passed such a law). all A detailed record, covering corroborative evidence would be possible angles, with extensive, necessary and not unreasonable. 2012] 2012] they than work orphan regarding legislation under fare better will it. would without is illustra­ Office to the Copyright initial comment Association’s tive. \\jciprod01\productn\W\WNE\34-2\WNE210.txt Professor of Art History, in the Department of Art and Art History at Wesleyan Professor of Art History, in the Department University). 1992) (noting the quality of a search is important for diligence, not just quantity). member that a quality already knew that Life right direction. C Y 32073-wne_34-2 Sheet No. 123 Side A 08/21/2012 07:54:18 A 08/21/2012 123 Side Sheet No. 32073-wne_34-2 32073-wne_34-2 Sheet No. 123 Side B 08/21/2012 07:54:18 M K C Y 34:537 34:537 [Vol. 5-JUN-12 12:32

Laura N. Bradrick* Seq: 42 Seq: he could use the photograph and the photograph use he could unknown 254 ONCLUSION for their hard work during the editorial process. I , Volume 34.Volume , I want to thank my colleagues on the C Part VI.B.2. Part VI.B.3. WESTERN WESTERN NEW ENGLAND LAW REVIEW and service of process, service and See supra See supra J.D., Western New England University School of Law, 2012. Articles Editor, 253 This Note illustrates the ways in which the orphan works prob­ the ways in which the orphan This Note illustrates not have to persist, and Con­ The orphan works problem does the copyright holder and the Demanding accountability of both These same steps are appropriate for all visual art, whether the visual art, whether for all steps are appropriate These same 253. 254. * lem came to be and why it will not be going away on its own. why it will not be going away lem came to be and Legis­ is the best the combined powers of Congress lation created through works problem.solution to the orphan Note discusses, cre­ As this diligent for what constitutes a “reasonably ating a better definition the search re­ an orphan work user can satisfy search” and how proposed legis­ Congress should focus on in any quirements, is what lation. for Congress in areas of law prove instructive Other diligent search” such as the defining what constitutes a “reasonably Rules of Evidence, and the Internal Revenue Code, the Federal in proof of service cases. standards of diligence required gress can provide a solution. If the United States wants to become Congress should enact legislation a world leader in copyright law, regarding the orphan works problem—a global, not just domestic, problem. the The benefits of a legislative solution are better than and, more importantly, are not benefits of other potential solutions unrealistic, but are completely plausible. There is a way to please user, and the public at-large. the copyright holder, the copyright is the first step in the right direc­ orphaned copyrighted work user tion. There can be a home for orphans despite the lack of formali­ ties in today’s copyright law. Through orphan works legislation, the its culture and society by United States can continue to develop of giants. fearlessly standing on the shoulders 578 dence, \\jciprod01\productn\W\WNE\34-2\WNE210.txt Western New England Law Review for also would like to express my sincerest gratitude to my parents and my best friend all their love, support, and inspiration. Western New England Law Review be free of fear of liability should the copyright holder ever surface. holder ever should the copyright fear of liability be free of or in of a museum, in the archives found on the internet, work is garage. someone’s 32073-wne_34-2 Sheet No. 123 Side B 08/21/2012 07:54:18 B 08/21/2012 123 Side Sheet No. 32073-wne_34-2