Intellectual Property Law

A Real-Life Orphan Works Dilemma

By Richard Esguerra

Though the orphan works problem can seem arcane, the New York Times provides a clear, real-life example of the orphan works problem.

A history teacher and part-time book publisher wanted to use two photographs from the archives of the Brooklyn Historical Society -- and was willing to pay for the rights to use them. But the Brooklyn Historical Society refused his offer, because the copyright status of the photographs is unclear. The article notes:

The holders of the copyrights for the pictures -- one taken around 1895 and the other in the early 20th century -- are unknown, she said, and without permission from them or their estates, the photos cannot be reused for a commercial endeavor. Until, that is, they pass into the public domain, which is due to happen for the older picture in 2015, and for the newer as late as 2045.

So, there's orphan works problem in a nutshell: both creativity and commerce are in suspended animation, with no one -- not the photographer/copyright owner, not the archive, not the publisher -- able to express, document, or profit from the works in question. Under the orphan works scheme proposed in new legislation, the copyright owner would be paid a reasonable fee should the photographs be used in any way.

For more background and information on orphan works, check out our previous deeplink and podcast.

Full post as published by Electronic Freedom Foundation - Deep Links on July 07, 2008 (boomark / email).