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Orphan Works and the Adoption Process

The Orphan Works Act has had a hard-knock life, much to the surprise of its original proponents.  After all, who wouldn't want an orphan to be adopted into a good home?

The rhetoric and intent behind H.R.5889/S.2913, an amendment to copyright law currently working its way through Congress, are simple -- some believe deceptively so.  Because copyright protection lasts for a long time (currently life of the author + 70 years), it can be hard to ascertain who owns the copyright in an older work or to locate the copyright holder.  This difficulty is likely to get worse in the future, since the U.S. in 1989 moved to an opt-out rather than an opt-in system -- in other words, copyright happens automatically.  It's no longer required to register your work with the Copyright Office or print a copyright notice on it (though both are good ideas), so there's no comprehensive record of who owns what with respect to copyright.  This creates problems for a subsequent creator who might want to turn an old short story into a play, restore and reissue a pre-code film, or use an ad from a defunct company on a T-shirt. 

The Orphan Works Act, originally proposed in 2006, tries to remedy this problem by limiting penalties for a copyright infringer who makes a "diligent effort" to find a work's owner before copying it but is unable to locate that copyright owner.  So far so good, right?

Not so fast.  While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records?  What's a "diligent effort" to find a copyright holder?  What's "reasonable compensation" if the copyright holder turns up later?  And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)? 

Graphic artists, photographers, and textile designers have been among those most concerned about the potential effects of the bill, largely because their works are among those most likely to be mistaken for "orphans" when their parents are very much alive and well, thank you.  (It's a bit reminiscent of the controversy that erupted when Madonna decided to adopt an orphan from Malawi, only to learn that his father was still around.  The difference, of course, is that the boy was actually in an orphanage, while accidental orphan works might just be hanging around in public without nametags.) 

Given this ongoing debate, it's interesting that, according to a Textile World report last week, three textile trade associations have decided to support the legislation.  Why the new enthusiasm?

While neither Textile World nor the websites of the American Manufacturing Trade Action Coalition, the National Textile Association, or the Decorative Fabrics Association offer analysis of the decision, a closer look at the House version of the Orphan Works Act may provide an answer.  The following two provisions in the bill would limit its application to textile designs:

(1)  An "exclusion for fixations in or on useful articles."  The bill's limitations on liability don't apply to infringers who incorporate the copyrighted work into a useful article -- like printed fabric sewn into clothing -- and sell it to the public.  From a textile designer's perspective, this preserves the ability to enforce copyright against the Forever 21s of the world, a key strategy for fashion designers who can't protect their garments under U.S. law but can protect their prints.

(2) Visually searchable databases/effective date of legislation.  While the bill in general, if passed, would take effect on January 1, 2009, it would not apply to pictorial, graphic, and sculputural works (including textile designs) until either the Copyright Office certifies the availability of at least two visually searchable databases or January 1, 2013, whichever is earlier.  One of the concerns of textile designers is that it's harder to locate the original creator of a visual work than a verbal one.  This provision would allow a period of time to address that issue and ensure that a truly diligent effort to find the owner of a textile design could be successful. 

In other words, if these limitations remain in the final version, textile designers would be insulated from many of the legislation's immediate effects and would have little reason to oppose its passage.

Congress is rather preoccupied with elections, gas prices, a war, and so forth at the moment, but proponents of the Orphan Works Act may see this move within the textile industry as a sign that the sun will come out tomorrow.  Or at least next term.