Whose Work Is It, Anyway?

The use of 'orphan works' of art and literature, whose creators cannot be identified, puts scholars and artists at odds over changes in copyright law

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By SCOTT CARLSON

Like many other scholars across the country, Joseph Siry might have broken the law to illustrate an article he wrote for an academic journal -- by including an illustration without obtaining permission to do so from its copyright holder.

Mr. Siry, who is usually meticulous about clearing copyrights, says he did his best to get permission for the illustration -- a sketch of a building, drawn by a collaboration of architects at several firms, that had influenced a Frank Lloyd Wright design some 50 years ago.

But Mr. Siry, a professor of art history at Wesleyan University, hit a series of dead ends: The architecture firms involved were out of business, and their onetime principals could not be found. The rendering had appeared in Life magazine, but staff members there told him that the magazine did not own the images. Nor did Life's archives have any record of people connected to the design.

With no apparent owner to approve its publication, the image was stuck in copyright limbo, a prime example of what legal experts call an "orphan work." Mr. Siry made a difficult decision: He cited the little information he had about the design and used it in his article anyway, despite the risk of being sued for infringement if an architect turned up later with a legal claim to it. He was assured by the academic journal, he says, "that this risk was minimal." Still, he expresses discomfort over the choice he made.

Many scholars, archivists, and librarians have stories like Mr. Siry's. Orphan works have led to complications not only in publishing but also in digitizing projects, preservation efforts, and the creation of works like film and video documentaries.

This week, at the urging of prominent legal scholars, academic-library organizations, technology companies such as Google and Microsoft, and many other interested parties, the U.S. Copyright Office is holding a series of hearings to determine whether copyright law should change to allow for more liberal use of orphan works.

Scholars and others weighed in earlier this year, filing comments on the issue with the copyright office in anticipation of the hearings. The American Historical Association, for example, noted that orphan works had become a problem for scholars, "hampering the historian's ability to work with the raw materials of history."

The comments reveal that even frequent adversaries on copyright issues agree that changes are needed in how the law governs orphan works. But few people agree on what those changes should be.

Many issues surrounding orphan works -- how they should be defined, vetted, and used, and how much a user should pay if a work's "parent" turns up later -- remain subject to vigorous debate, with various groups looking out for their interests. The music-licensing organizations Broadcast Music Inc. and Ascap have proposed that any orphan-works exemptions should not include music. Other parties have suggested that changes in law should apply only to domestically published works, while foreign works and unpublished works should remain strictly protected. (Foreign works must be protected to avoid violating international agreements, some lawyers say, and unpublished works may need to be off limits to protect the privacy of owners who might have preferred that the works remain unpublished.)

And some groups -- in particular visual artists like photographers and illustrators -- strongly oppose any loosening of the law for orphan works, seeing it as an assault on copyright that will deprive artists and creators of their due.

Many Ways to Orphan

An orphan work can be a film, a book, a private letter, a painting, or any other creative work covered by copyright, in which protection, through the complexity of the law, can extend as far back as 1923. A work can become orphaned in any number of ways: For example, an artist can die, and the heirs may not know about the artist's copyrighted work. A company that published a novel might go out of business or fall into the hands of another company that does not maintain publication records. It is particularly hard to figure out who took a photograph, unless the name of the photographer or studio is cited somewhere on the print.

Works like those add up to a great deal of published material, according to studies conducted by research libraries. Five years ago Carnegie Mellon University's library studied a sample of about 270 items from its holdings; librarians could not find the owners of 22 percent of the works.

In response to the U.S. Copyright Office's request for comments, Cornell University librarians added up the money and time spent clearing copyright on 343 monographs for a digital archive of literature on agriculture. Although the library has spent $50,000 and months of staff time calling publishers, authors, and authors' heirs, it has not been able to identify the owners of 58 percent of the monographs.

"In 47 cases we were denied permission, and this was primarily because the people we contacted were unsure whether they could authorize the reproduction or not," says Peter B. Hirtle, who monitors intellectual-property issues for Cornell's libraries. "Copyright is supposed to advance the sciences and arts, and this is copyright becoming an impediment to the sciences and arts."

Restrictions on using orphan works, often imposed by risk-averse lawyers at colleges and museums, affect scholarly work in ways large and small.

Wendy Katz, an assistant professor of art history at the University of Nebraska at Lincoln, had trouble finding the copyright owner of a painting she wanted to reproduce in a book. The museum that provided a picture of the painting could offer no help, and her search led only to another scholar who had published the painting without permission, after also failing to find the copyright owner.

Ms. Katz, too, eventually published the painting, hoping that the owner would not turn up. The decision bothers her, as she is normally a supporter of copyright for artists, but she believes that scholars should get special consideration in cases like these.

"I don't see publication harming the value of the objects," she says. "I'm not making any money from it, and the press is breaking even, if they are lucky."

In its comments to the copyright office, the Center for the Study of the Public Domain, at Duke Law School, said whole generations of movies are at risk because of their orphan status. Film deteriorates more rapidly than other media, such as paper. Digitization projects could help preserve the films, but the center notes that donors are not inclined to pay for the costly digitization of movies that the public cannot see because of copyright restrictions.

Model Proposal

Those are the sorts of problems that Peter Andrew Jaszi, a law professor at American University, heard about at copyright conferences and meetings several years ago, before abandoned works were commonly known as "orphans." He encouraged his students at the law school's Glushko-Samuelson Intellectual Property Law Clinic to propose a solution.

The clinic's response, filed with the copyright office this year, has come to be seen by many libraries and publishers as a model solution. Its basic points: An orphan work is any for which an owner cannot be found, regardless of how recently it was published or whether it was published at all. People should be able to use an apparently orphan work after "reasonable effort" to search for its owner, but the law should not spell out what that effort entails. If an owner turns up after a supposedly orphan work has been used, the owner should be able to collect a small amount -- from $100 to $500 -- but not obtain statutory damages, attorneys' fees, or injunctions.

The Glushko-Samuelson proposal does not advocate establishing a registry of orphan works, but some copyright experts do. Lawrence Lessig, a Stanford University law professor, recommends requiring authors, musicians, and others to register their work within 25 years of publication. Software developers would get less time -- five years -- because software becomes obsolete much more quickly. A search of the government-supported registry would be enough to determine whether or not a work was an orphan.

Proposals by other organizations diverge wildly, but most of them disagree on two main points: how an orphan work should be defined, and what a user should pay if an owner comes along after a work has been used.

Of the two, the issue of payment is simpler.

Some organizations, such as museums, have recommended paying nothing at all. The J. Paul Getty Trust, the Metropolitan Museum of Art, and the Solomon R. Guggenheim Foundation have suggested a "safe harbor" of five years after the use of an orphan work, beyond which point the owner of a work would not receive payment, although he or she could negotiate for its continued use.

On the other side, comprising mainly groups that represent publishers and authors, some have proposed that a user should pay a "reasonable licensing fee" to the owner, based on what the user might have paid if the owner had been found before publication. By contrast, paying a small, fixed amount of only $100 to $500 "would cause a real unfairness for copyright owners," says Allan R. Adler, a lawyer for the Association of American Publishers, which filed comments jointly with the Association of American University Presses and a software-industry group. "If the user of the work refused to pay even that small amount," he says, "it wouldn't be worth going to court to collect it."

Mr. Jaszi, the law professor, contends that stipulating only that a fee be "reasonable" is too vague a standard to be useful. "The problem with that proposal is uncertainty," he says.

The reason that people do not use orphan works now, he argues, is that "they don't know what their exposure might be if they use something and end up with a cease-and-desist letter."

'It's a Pain'

When hearings convene this week in Washington and on August 2 in Berkeley, Calif., the copyright office might hear far more wrangling over what types of works could be used as orphans -- or whether the issue is as pressing as some say it is.

Jane C. Ginsburg, a professor of law at Columbia University, read through the comments submitted to the copyright office while she was submitting her own. "There are an awful lot of submissions that say, 'It's a pain in the butt to clear rights,'" she says. "That doesn't make a work an orphan work. Both internationally and domestically, you don't want this to be used as an excuse to screw individual authors."

She is concerned that some of the proposed changes are inconsistent with international copyright agreements, such as the Berne Convention and the World Trade Organization's Trips agreement. As a result, she argues, international works should not be covered in any change of the rules.

"These international norms have teeth," she says. If the United States creates an exception to copyright that does not comply with the terms of international treaties, she says, aggrieved countries can go through the WTO to impose sanctions on the United States.

Concerns about international law aside, Ms. Ginsburg worries that individual artists and independent writers, not big publishers, have the most to lose from any change in copyright law because they do not have the money or influence to advertise ownership of their work.

"Many of those who raise concerns about orphan works start from the premise that there are works that should be in the public domain because their authors don't care about them, and that they are clogging up the system and preventing subsequent authors and others from using them," she says. "That's not necessarily a correct premise."

A group called the Illustrators' Partnership of America was formed on the basis of issues such as this. Illustrators, the group points out, are hard to trace if a picture appears uncredited in a book or online.

"Visual artists are particularly harmed by this concept of declaring orphaned any work where the author can't be located or identified," says Cynthia Turner, a medical illustrator who is part of the group. "That just about covers all of our work. We are already having a lot of difficulty with our work being separated from its original publication and being thrown up on the Web and disseminated without our permission."

Ms. Turner and Brad Holland, an illustrator whose work has appeared in Time and The New Yorker, argue that publishers and others will use orphan-works exceptions to exploit artists' work.

"It would undermine our ability to control our rights and make a living from the work that we produce," Ms. Turner says.

'There Is a Market'

Mr. Holland says he recently resold some illustrations that originally appeared in a book 30 years ago. "I never thought anyone would want to use them again," he says, "but it suddenly dawned on me that there is a market for these illustrations." Just because those illustrations were made long ago and were once thought unmarketable even by the artist, does not mean that he surrenders his rights to them, he says.

Those illustrations would have been too old to register under Mr. Lessig's proposal, Mr. Holland notes. In general, he says, a registry requiring him to dig through and register thousands of illustrations is an unfair burden, and it is worse for photographers, who can take scores of pictures in a single year.

"Lessig wants to argue that I need to register everything that I do, or it's an indication that I don't see any commercial value," Mr. Holland says. A registry would require him to dig through and register thousands of illustrations.

"Peter Jaszi and Larry Lessig and these characters are all arguing that the purpose of copyright law is to bring work into the public domain as rapidly as possible," he says.

The Illustrators' Partnership gathered the signatures of hundreds of artists and illustrators in the United States and other countries, including France, Ireland, and Mexico, and submitted them to the copyright office, along with a statement opposing orphan-works exceptions.

Despite their opposition to mandatory registration, the illustrators are considering a voluntary registry using technology that can embed ownership information in a picture, to help people identify the owners of works.

Mr. Jaszi sympathizes with those who worry about exploitation under new orphan-works rules, but he worries that various groups will pressure the copyright office and lawmakers to "peel off" the more challenging parts of orphan-works reform.

"In other words, the narrower the coverage, the more likely it will slide through without controversy," he says. "Anyone who is interested in orphan works should watch to make sure that big chunks of material don't get pushed aside in an effort to make something happen."

One of those waiting for the outcome is Leslie Humm Cormier, who teaches art history at Emerson College.

Recently she was working on an article about the Modernist architect Josep Lluis Sert, of the firm Sert, Jackson, & Associates. She acquired photographs of Sert's work from the 1950s and 60s from his partner, Huson Jackson. But she learned that the firm did not own the photographs; the photographer did, and he was nowhere to be found.

"I completed the work as well as I could, but I would have done much more in-depth work if I had a sense of freedom," she says. "It would have been a journal article. As it turned out, I put it in a lesser publication."

Ms. Cormier, who recalls once being plagiarized by a newspaper writer, says the incident steeled her resolve never to use an item without permission. "It's severely limiting," especially for someone in her profession, she says. "It's a visual subject that I work in."