Administrative Law

Why we need help with Orphan Works

By Peter

According to the Chronicle of Higher Education, the House's Orphan Works bill has been approved by the subcommittee, though Congresswoman Lofgren promises to add an amendment to kill the controversial provisions for an archive of uses, which is opposed by the Library Copyright Alliance.

A new book that crossed my desk illustrates for me the orphan works problem.  Dear First Lady: Letters to the White House by Dwight Young and Margaret Johnson consists of interesting letters sent by and to First Ladies starting with Martha Washington and ending with Laura Bush.  The book, as you might suspect, is awash with orphan work copyright problems.

It is clear that the editors do understand that most of these letters are protected by copyright.  I just looked at the credits for the 39 letters that postdate 1937 (and hence are likely to be protected by copyright).  One was written by a government employee (Arthur Schlesinger - though perhaps not in an official capacity, and so not necessarily  "a work of the US government" and hence in the public domain).  8 others were written by a President or First Lady.  While the book does not state  that they have permission to use these works, it seems likely. 

Of the remaining 30 letters, 16 are used with permission and 14 are used without any formal statement of permission.  The latter includes letters that seem unlikely to be true orphans (i.e., from Elizabeth Arden, the cosmetics magnate, and Maria von Trapp, whose life inspired The Sound of Music) as well as letters whose copyright owners would be almost impossible to trace (for example, a letter written by a 9 year old girl to Lady Bird Johnson).  In some cases, the editors were able to secure permission even when it would appear to be a likely orphan (as with a letter written by an Army private to Eleanor Roosevelt in 1943).

[Aside: There are other letters that predate 1938 that are still protected by copyright, and most of them are also orphan works.  In some cases, it is known that their authors died after 1937.  In other cases, it seems likely that this is the case (for example, letters written by school children to Lou Hoover in 1929.  They probably did not die before 1938).  1937 makes for a nice cut-off, however.  We know that almost everything later than this must still be protected by copyright.]

The bottom line is the editors and the publisher (National Geographic) were willing to reproduce unpublished and hence copyrighted letters, often in full, and thus infringe on the copyright owner's rights of reproduction and first publication.  I assume that they took this calculated risk knowing that the chance of a legal action is low and the damages likely to be small.

That is an option that I, and I think most library and archives, don't have.  Copyright infringement at Cornell is a violation of several university policies, as it is at many schools.  And like many archivists and librarians, I am risk adverse: a low threat of legal action is still intimidating.  Orphan works legislation that can be implemented and that does not impose huge burdens could help overcome these obstacles.  It still remains to be seen, however, if the legislation that finally passes Congress imposes manageable requirements.

Full post as published by LibraryLaw Blog on May 08, 2008 (boomark / email).