Orphan Works

A propos of the plea to tell the Copyright Office about issues raised by orphan works: What makes a copyrighted work an “orphan,” anyway? The Copyright Office characterizes these in what I think is the usual way: “copyrighted works whose owners are difficult or even impossible to locate.” In other words, their parents are dead. We think that there is a large class of (often older) copyrighted works that are under-used, or ignored altogether. Orphans in the Little Orphan Annie sense, waiting for some benevolent Daddy Warbucks to rescue them from the clutches of evil orphanages. Copryight law reform becomes like family law reform. In this sense, what we need is an effective “best interest of the child” regime.

But (leapin’ lizards!) Scrivener’s Error points out that there is a large class of copyright “orphans” out there because corporate lawyers and bankruptcy lawyers just aren’t tuned into the nuances of the copyright system. When companies go south, a lot of potentially valuable copyrighted material falls through the cracks. In some cases, then, is the problem not locating the “parents,” but accounting (literally) for the copyrighted material in the first place?