CAA News Today

The College Art Association is preparing to file formal comments with the U.S. Copyright Office in support of a proposal to alter the current copyright law to address the problem of "orphan works"— works that are still in copyright, but where the copyright holder cannot be found and the rights cleared.

Scholars and publishers working in 20th-century art are familiar with this problem: You want to publish a picture or quote a text; you are ready to clear permissions and pay any necessary fees, but you can’t find the artist or author, or an estate. What do you do?

CAA needs your anecdotes as soon as possible, detailing specific examples where you were unable to use material in your research or publication because you could not find the rights holder, or where you were obliged to publish without obtaining permission, after making every effort to find a rights holder. Your stories will be cited anonymously, without identifying information, and sources will be kept confidential.

Summary of the U.S. Copyright Office Initiative
The U.S. Copyright Office has begun a proceeding to seek information about "orphan works." Orphan works are works (images/photos, letters, books, works of art, and others) that are still formally protected by copyright, but where a potential user—scholar, teacher, artist, publisher or other person or institution—is unable to clear rights because a) there is no copyright information associated with the work; b) the information is inadequate or inaccurate; or c) attempts to contact possible rights holders have proved futile (no one at last known address; publisher out of business, no responses to letters, etc.). Examples of such orphan works might be unsourced/uncredited photographs in older books; foreign works without copyright information; unsigned works of art; and letters written by persons who died within the last seventy years but who left no (findable) heirs. For CAA members, the problems posed by orphan works can be considerable. The Copyright Office has recognized that there is some value in being able to use these works, even if rights cannot be cleared. The Copyright Office issued a Notice seeking information on the "orphan works" problem on January 26, 2005.

The problem of finding the holders of rights in orphan works has been exacerbated by the recent extension of the term of copyright, which has postponed the date on which certain older works would otherwise enter the public domain (usually if the author has died before 1923). However, the problem of orphan works is certainly not confined to older works; information accompanying far newer and even recent works may also be inadequate for a user today to find the rights holder.

What CAA Is Doing
The College Art Association, with many others (including libraries, museums, public-interest groups and associations), plans to file comments in response to this Notice. CAA will ask the Copyright Office to recognize the substantial problems posed for individual users, publishers, museums, libraries and others by their inability to clear rights in orphan works. As part of the proceeding, the Copyright Office will consider proposals for ways to improve this situation. These might include amending the copyright law to permit uses of orphan works without users being unduly fearful that rightful copyright owners might emerge to claim a copyright infringement. This is an opportunity for us to make our voices heard in Washington on how copyright affects us!