Orphan Works: One Creator’s Trash* is Another Creator’s Treasure

Image by Stephan Dotti

An orphan work is a work by a copyright owner who cannot be located after a reasonable search.   Copyrighted works become orphaned for a number of reasons.  Be it that the copyright owner did not know of his or her copyright, the copyright owner passed away, the business owning the copyright has dissolved, or some other reason rendering the work orphaned.

Orphan works are not typically a subject of major discussion in the music industry; especially given the vastness of blatant (okay, and sometimes “innocent”) copyright infringement.  With the recent discovery of the late jazz music aficionado William Savory’s extensive record collection, widespread interest in orphan works has recently emerged.  Mr. Savory’s collection is legend.  The recordings are of rare, never before recorded performances by jazz greats thought to not exist because of the limited recording technology of the jazz era.  Since the recordings contain works belonging to many different copyright owners who may never be located, this extraordinary collection may never be released to the public.

The discovery of the record collection has drawn attention to the incompleteness of copyright laws.  Once an original work is of tangible form, the work has copyright protection.  This copyright protection is automatic, regardless of what the author does with the work and regardless of whether the work is later orphaned.  If someone wants to use the orphan work, there are two options: use the work while assuming the risk of being sued for copyright infringement, or not use the work.

The Copyright Office attempted to solve the dilemma surrounding orphan works in 2006 by suggesting legislation that would allow others to use orphan works.  Under the proposed legislation, if a person is sued for the infringing use of an orphan work after a reasonable search for the copyright owner, the infringer would pay the work’s owner a reasonable license fee.  Unfortunately, however, this legislation has not become law.

The dilemma of using orphan works has not stopped some creators who risk copyright infringement liability in the name of creative evolution.  A very notable usage of orphan works is DJ Shadow’s highly acclaimed album Endtroducing…... Inspired by the use of sampling in hip hop music, yet weary of the Biz Markie sampling/copyright infringement case, DJ Shadow created an album consisting entirely of sampled work.  DJ Shadow cleared as many samples as possible to avoid the likelihood of being sued.  The remaining, uncleared, samples were of records he found through flea markets and garage sales, most of which are possibly orphan works.

Orphan works provide a unique situation for creators who desire to expand upon those existing works.  As DJ Shadow proved, one can breath new life into orphan works if only that person is willing to assume potential liability.  Until Congress enacts legislation that will allow people to creatively use orphan works while limiting liability, many orphan works will be forgotten due to legal precautions.  For those living on the dangerous side, one creator’s trash* may very well be another creator’s treasure.

*Orphan works are not actually considered trash.


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