The Effect of Orphan Works on Music Libraries: The 2005 U.S. Copyright Office Roundtables

The United States Copyright Office defines "orphan works" as: "a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner."¹ For example, consider this hypothetical situation. Suppose a publisher, Fosterage Music Co., wishes to publish a music anthology including an unjustly neglected song, "Das klagende Pflegekind" by Philip von Waisenhäuser, first published in 1978 by Immigrant Musician & Stepsons, Unlimited, of Tucumcari, New Mexico. The original publication carries a copyright statement naming Mr. Von Waisenhäuser as the rights holder. A letter to Immigrant Musician receives a response informing Fosterage Music that Mr. Von Waisenhäuser moved to the United States from Germany in 1972 with his daughter, but he died in 1983. His daughter, the sole heir of his estate, was married in 1990 and moved to Tulsa for a few years. Then all mailings sent to her were returned due to no forwarding address, and there were no further communications from her. Fosterage Music has reached a dead end, so to speak. The work is still under copyright, but all attempts to find the composer's daughter, and presumably the current copyright owner, are fruitless. Under current copyright law, "Das klagende Pflegekind" will not enter the public domain until 2053, seventy years after the death of Von Waisenhäuser. Until then any subsequent uses of the song will need the permission of the Von Waisenhäuser estate.

Should the publisher include the work in the anthology? Would the publisher be sued for copyright infringement or required to pay a licensing fee by the composer's daughter if she identifies herself after republication? Will this orphan work simply languish unknown and unappreciated for decades?

Why do situations like this exist? Over the years, the United States copyright laws have extended the length of copyright. In the first copyright act of 1790, copyright was registered for fourteen years and could be renewed for another fourteen. By the time of the 1909 act, these time periods were doubled to twenty-eight years each. Beginning with the 1976 act, copyright terms became much more complicated, and various term extensions were added in subsequent legislation, until today, when an individual's copyright (registered or not) extends until seventy years after the author's death. Also, the 1976 act no longer required registration with the copyright office or even evidence of copyright on the item. As long as the work is original and "fixed in a tangible medium of expression," the creator immediately has copyright protection over the work. Copyrights held by corporations enjoy copyright protection for 95 years from publication or 120 years from creation, whichever occurs first.²

The increased term lengths, plus the instantaneous granting of copyright protection at the moment of creation, combine to create a large number of orphan works, because it can be difficult to locate the heirs thirty, fifty, or more years after an author's death. The situation with corporations is no better given the number of mergers, acquisitions, and bankruptcies that can occur over a century.

MLA's Statement of Interest for the Orphan Works Roundtables

In January 2005, the Judiciary Committee of the U.S. Senate requested that the Copyright Office study and report on the issue of orphan works. The first step in the study was a "Notice of Inquiry," by which the public was asked to submit written comments and replies to the Copyright Office.³ The response was surprising—over 850 submissions were received.⁴ Following the comment period, three days of roundtable discussions were conducted in Washington, DC (26–27 July 2005), and Berkeley, California (2 August 2005), to which the public applied to participate.

In July 2005, the MLA Legislation Committee reviewed the comments and replies to the Copyright...