Orphaned Works: What & Why Funders Need to Know

There has been a lot of discourse in the media arts field over new legislation concerning copyright. Introduced on April 24, 2008 in both the U.S. House of Representatives and the Senate, the legislation addresses so-called "orphan works" - copyrighted works (original works of authorship that are fixed in a tangible form of expression) in which a copyright holder is difficult to locate or identify and may still benefit from copyright protection.

Our colleagues at Americans for the Arts have done a great job in compiling information about the ongoing status and policy concerns identified in the legislation. As grantmakers to arts organizations and to individual creators, the GFEM community needs to be cognizant of the impact of these proposed changes. By staying informed of the progress of this legislation, we are better equipped to offer appropriate support for media makers seeking to incorporate orphaned works in their new art.

From the Americans for the Arts Advocacy Alert:
H.R. 5889, the "Orphan Works Act of 2008" introduced by Representative Howard Berman (D-CA) in the House, and S. 2913, "The Shawn Bentley Orphan Works Act of 2008" introduced by Senator Patrick Leahy (D-VT), seek to amend the Copyright Act of 1976 by limiting certain liabilities of potential copyright infringers depending on whether diligent effort was put into a search before use is made according to guidelines established for the U.S. Copyright Office (USCO). The intent of the two bills is to encourage greater public enjoyment of orphaned works, as stated by Rep. Berman, "Too many valuable works are unused because their creators are unknown and potential users fear excessive liability.” In the words of Sen. Leahy, "There are thousands of artistic creations around the country that are effectively locked away and unavailable for the general public to enjoy because the owner of the work is unknown."

Differing Viewpoints:


Media arts organizations such as the National Alliance for Media Arts and Culture (NAMAC) and the Independent Feature Project (IFP) have jointly published their positions on this bill, welcoming these new developments; "Orphan works legislation has been in the making for several years.” said Milton Tabbot, Senior Director of Programming at IFP, the nation’s oldest organization of independent filmmakers. “We are grateful for the tremendous work Congress and the Copyright Office have done in bringing this issue to light and working toward positive changes for filmmakers. As both copyright owners and as creators, balanced orphan works reform is vitally important to us.”

• NY Times Op/Ed--May 20th

Lawrence Lessig has written an Op/Ed acknowledging the problem of orphan works but he believes the proposed legislation is not a fair solution for many copyright holders. You can read the article here.

• Public Knowledge--Orphan Works Legislation

Public Knowledge is a Washington, D.C.-based public interest group working on issues in the emerging digital culture. Their website has a comprehensive orphan works section that offers analysis that is supportive of the pending legislation, but also includes opposition opinions, critique and concerns as well as their own proposed legislative suggestions. For more information, please click here.

• Orphan Works Opposition Website

Visual arts groups have created a website in opposition to the proposed legislation which can be found here. As noted in the preceding materials, visual artists have raised discipline-specific concerns as to how the bills effect their work.

I urge my grantmaker colleagues to continue to follow the progress of this important legislation, as well as other intellectual property rights issues, the effects of which are certain to have a lasting impact on our work.

- Fidelma McGinn, Executive Director, Artist Trust