‘Orphan works’ deserve home

If a copyright holder can't be found, the original creators should have options

Volume 113, No. 3March, 2013

The AFM and the Recording Academy, together representing more than 100,000 performers, songwriters and record producers, filed joint comments with the Copyright Office on the topic of “orphan works,” as the federal office determines its policy recommendations to Congress.

Orphan works are defined as copyrighted material whose owner cannot be found.

Some members of Congress seek to create legislation that would allow certain uses of copyrighted material without the owner’s consent after good faith efforts are made to identify and contact the owner.

The AFM and the Academy presented a novel approach to the question as it pertains to the music industry, in which the author of a composition or sound recording may have transferred his or her rights to another entity.

The groups contend that when an owner of a musical work (such as a record label or music publisher) cannot be found, the creator of the music should have the rights of the owner in licensing the work. “Ideally, the creators of the recording who can be found should be put in the position of the missing owner of the copyright in the sound recording, so that where appropriate the creators can license or refuse to license the new use,” said the AFM and the Academy in their joint statement to the Copyright Office. “In the alternative, the new user of the orphaned work should be responsible for making any payments to or on behalf of the creators that the copyright owner would have been required to make.”

The statement also noted that any original agreements regarding the creators’ standards of integrity should be honored if the work becomes orphaned, and called for a rigorous search standard to ensure due diligence is followed in trying to locate the copyright owner.

The AFM and the Academy will continue to work with the Copyright Office and members of Congress to protect creators’ rights as new policies are developed for orphan works.

The full statement can be viewed here: